Unemployment
	 — 
	Question

Lord Roberts of Conwy: To ask Her Majesty's Government what is the latest quarterly figure for total unemployment in the United Kingdom; and what is the latest monthly total number of claimants of unemployment benefit.

Lord McKenzie of Luton: My Lords, in March to May 2009, total ILO unemployment in the UK was 2,381,000 and the unemployment rate was 7.6 per cent. In June 2009, there were 1,560,100 people claiming jobseeker's allowance and the claimant unemployment rate was 4.8 per cent.

Lord Roberts of Conwy: My Lords, I am sure that the Minister is aware that that increase in the total of 281,000 is the largest since records began in 1971. First, are the Government satisfied that their fiscal stimulus package, announced in the Pre-Budget Report, and their quantitative easing policy are working effectively? Secondly, is there adequate take-up of their schemes to help businesses through bank lending, notably the enterprise finance guarantee and working capital schemes and the capital for enterprise fund?

Lord McKenzie of Luton: My Lords, the noble Lord is right to address the figures, because they show the continuing effect of the global recession, from which, of course, we are not immune. In response to his direct questions about UK government action and whether it is having an effect, yes, I believe that it is. There is not just the fiscal stimulus but a whole range of issues: financial support to the banking industry and banking recapitalisation; the Pre-Budget Report fiscal stimulus, helping businesses, consumers and individuals; the home owner mortgage support scheme, with mortgage repossessions now half the rate that they were in previous recessions; 350,000 new apprenticeships; the business finance package, including the items that the noble Lord suggested, which I believe are having an effect; other measures to support the car industry; and extra resources for Jobcentre Plus.

Lord Tomlinson: My Lords, is my noble friend aware of the evidence given yesterday by the most recently appointed member of the Monetary Policy Committee of the Bank of England? He said that the measures that have been taken by the United Kingdom Government put us in a better position than either the United States or the eurozone to have our banking system back in good condition to serve the purposes of this country.

Lord McKenzie of Luton: My Lords, I am grateful to my noble friend for that question. I was not aware of that evidence, but it seems to me very sound evidence, which I am sure is right.

Lord Forsyth of Drumlean: My Lords, will the Minister confirm that people aged under 25 make up one in five of the workforce but two in five of the people who are unemployed? Is this not a national disaster? Despite the Government's efforts, what are they going to do to tackle this problem, which is going to grow considerably in the months and years ahead?

Lord McKenzie of Luton: My Lords, the Government are committed to ensuring that no young person is permanently disadvantaged by the recession and that all young people are able to maintain their attachment to the labour market and take part in worthwhile activity. That is why not only are we ensuring that the generality of the support system is available for young people, but currently, after six months of unemployment, young people can enter the mandatory New Deal to get extra support. More recently, we have introduced the young person's guarantee, which is that within the first 12 months of someone under 24 being on JSA they have the guaranteed offer of a job, work-focused training or meaningful activity. I believe that that is the right way to support young people in these challenging times, in contrast to times gone by, when they were just left on the scrapheap.

Lord Oakeshott of Seagrove Bay: My Lords, we all enjoy in this House the constant cheeriness of the noble Lord, Lord Tomlinson, but if he thinks that the British banking system is in a good state, he is carrying things rather too far. Unemployment has risen by half during the past six months—that is bad enough—but the number of unemployed lone parents has trebled. Why?

Lord McKenzie of Luton: My Lords, that is partly to do with lone parents appearing in the JSA figures rather than in the income support figures, as they did before. That is because of changes to the lone parent obligations. The noble Lord will be aware of the thrust of the reforms in place, which is progressively to move lone parents on to an active benefit. That has in part contributed to those figures.

Lord Ashley of Stoke: My Lords, does it not amaze my noble friend that every time the Opposition refer to unemployment, they take no notice of the world recession and act as if the recession was entirely the fault of the Labour Government? They must know as well as we do, but why does he think that they play these games with the House?

Lord McKenzie of Luton: My Lords, my noble friend is absolutely right: this is not just a UK phenomenon. If you look at international comparisons, you will see that the UK continues to have one of the highest employment rates in the world—the second-highest rate in the G7 ahead of the US, Japan, France, Germany and Italy—and the highest of all the major EU economies. We also have the second-lowest unemployment rate of all the G7 countries.

Lord Freud: My Lords, perhaps I may probe on the question raised by my noble friend on the very high levels of youth unemployment that we are suddenly seeing—the figure is now more than 700,000. In the light of that steep increase, could the Minister let us know how many places will be needed for the young person's guarantee?

Lord McKenzie of Luton: My Lords, it is not just a particular place in particular employment, because the guarantee covers a range of opportunities, including work-focused training, the offer of a job—particularly supported through the future jobs fund—and community activity. A range of different opportunities is on offer. It is a guarantee to all people aged 18 to 24 who have reached the 12-month stage of their claim for JSA and not secured attachment to the labour market.

Lord Haskel: My Lords, when discussing the unemployment figures, could my noble friend please differentiate between the number of people who are unemployed because they are moving between jobs in the normal course of events and the number of people who are unemployed because they are actually out of a job?

Lord McKenzie of Luton: My Lords, my noble friend is right that the labour market is dynamic, which is illustrated by the fact that, although vacancy numbers have fallen back, they were still appearing at an average rate of 429,000 in the three months to June. Although 354,000 people went on to JSA in June, 325,000 came off it, so a lot is happening out there in the market.

Lord Kilclooney: My Lords, it must be a first when the noble Lord, Lord Tomlinson, has compared the eurozone adversely with the United Kingdom. In the context of the present world recession, do Her Majesty's Government take pleasure in the fact that, although we have high unemployment, it is much less than in any country in the European Union and especially any nation in the eurozone?

Lord McKenzie of Luton: My Lords, as I said a moment ago, our comparison internationally is still strong, but we do not take great pleasure from that. The fact that any person who wishes to seek employment is unemployed is unacceptable and we should recognise the human tragedy in all this. The fact that we may be doing comparatively better than other countries in the EU is not a source of pleasure; it makes us want to encourage and work with them to take on active labour market policies.

Government Expenditure
	 — 
	Question

Lord Sheldon: To ask Her Majesty's Government what they anticipate are the future increases in Government expenditure in real terms.

Lord Myners: My Lords, Budget 2009 set assumptions for spending growth from 2011-12 onwards which will enable continued improvements in front-line public services while also ensuring that public finances are sustainable in the medium term.
	Public sector current expenditure will grow by an average of 0.7 per cent per year in real terms between 2011-12 and 2013-14, with additional efficiency savings allowing the Government to focus resources on key front-line public service priorities. Public sector net investment will move to 1.25 per cent of GDP by 2013-14, twice as high as in 1997-98.

Lord Sheldon: My Lords, I thank my noble friend for that reply, which was very useful and dealt with a number of points of concern. In contrast to the post-war years, however, government expenditure in real terms is continuing as productivity declines. Is it not clear that we had one of the largest deficits of the 20 leading countries, with £3 billion per year being spent in Afghanistan, which comes from our contingency reserve, and a further £1 billion that could go on the swine flu epidemic? Will my noble friend comment on the expectation that the deficit could continue until 2017?

Lord Myners: My Lords, my noble friend makes a number of interesting observations, but he misses the point that we entered this global recession with the second lowest public sector borrowing as a percentage of GDP of the G7 countries. Accordingly, we are in a position to do precisely what we are doing, which is supporting the economy and providing real help now to British businesses and families. However, we are committed, through a very clear statement by my right honourable friend the Chancellor of the Exchequer, to reduce public sector borrowing as a percentage of GDP, once we have passed the worst of the global recession.

Lord Newby: My Lords, does the Minister accept that he is becoming the House's Paul Collingwood figure, playing with a straight bat as one by one his ministerial colleagues quit the crease and retire hurt, desperately waiting for the Government's own Monty Panesar in the unlikely form of Sir Alan Sugar? Does he accept that the figures produced at the time of the Budget have lost all credibility in this House and in the country? We are now looking for an urgent reassessment of the Government's spending plans, and for some firm indication of how public expenditure will be brought under control.

Lord Myners: My Lords, the noble Lord knows that we have strength in depth on our side of the House. We can all anticipate what our soon-to-be-ennobled Sir Alan Sugar will say to him, in terms of his key phrase. The Chancellor of the Exchequer made it very clear in Treasury Questions yesterday that he stood by the economic forecasts that he made during the Budget, in terms of what he anticipates will happen in the economy and its impact on public expenditure.

Baroness Noakes: My Lords, can the Minister explain why the Government keep saying that they will increase public expenditure by 0.3 per cent when the Budget shows very clearly that, after taking inflation into account, there is no real growth in total spending? There is, in fact, a reduction of 0.3 per cent which, if we take into account debt interest and other expenditure, such as benefits, is equivalent to a 7 per cent cut—seven whole percentage points—in departmental spending.

Lord Myners: My Lords, the noble Baroness really must do her homework before she asks questions. I did not say that public expenditure would increase by 0.3 per cent; I said 0.7 per cent. That is an increase in real terms and will maintain public sector capital expenditure at a higher level than achieved in any of the 18 years when the party opposite was last in power; a party opposite that is ashamed of its past in economic management, has no plans for the present and no ambition for the future.

Lord Lea of Crondall: My Lords, can I confirm that I, too, heard 0.7 per cent, not 0.3 per cent? As it is the party opposite that asked the Question about the rise in unemployment, would my noble friend not agree that you do not need to be a totally signed-up Keynesian economist to know that at present, but for the substantial commitment to a rising level of public expenditure, there would have been a lot more unemployed and even more crocodile tears from the main opposition party?

Lord Myners: My Lords, I completely agree, again, with the observations from my noble friend. Those opposite who subscribe to voodoo economics, which will cut back public expenditure precisely at the time when the public sector should be supporting the economy, are showing significant shortcomings in their knowledge of economics and sound management of the government economy and the broader economy.

Earl Ferrers: My Lords, I fear the Minister telling me to go and do my homework, but can he explain how he can say that government expenditure is going to go up while the noble Lord, Lord Mandelson, says that it is going to go down?

Lord Myners: My Lords, I stand by my statement. I do not think my noble friend Lord Mandelson said that public expenditure will go down. What he said was entirely consistent with the Government's position, which is that there will be a need to rebalance the economy once we come out of the recession, precisely to react to the bringing forward of capital expenditure, which has been such a significant feature of the Government's action as we take assertive and successful steps to address the impact of the global economy on our domestic economy.

Gift Aid
	 — 
	Question

The Lord Bishop of Southwell and Nottingham: To ask Her Majesty's Government whether they propose to introduce further measures to simplify the Gift Aid system in order to encourage wider take-up by potential donors before the end of the transitional regime in 2011.

Lord Myners: My Lords, the Government continue to look for ways to simplify gift aid. Following the 2007 gift aid consultation exercise, we introduced a wide-ranging package of simplification measures, and at Budget 2009, we announced new research into the effect of charitable tax relief on donors to inform thinking on gift aid. The research will be published in the autumn.

The Lord Bishop of Southwell and Nottingham: My Lords, I am grateful to the Minister for that reply. Is he aware that the latest HMRC figures for repayments of tax under the gift aid scheme indicate that were it not for the transitional relief, the amount of money charities would have earned under the gift aid scheme would have fallen in the previous financial year? The figures seem to indicate a fall of something of the order of £53 million. Transitional relief is running only until 2011. The sector is very worried and keen to ensure that income under gift aid is protected. Will the Government look again at the sector's proposal for an accounts-based system, which would help smaller charities access gift aid and those charities already running a gift aid scheme?

Lord Myners: My Lords, the right reverend Prelate takes a particular interest in this area, including through his work as chair of the Churches' Legislation Advisory Service. The value of gift aid to charities has increased from £135 million in 1996-97 to £891 million in 2008-09. The Government introduced transitional relief to ensure that charities were not affected as a consequence of the reduction we announced in the basic rate of taxation. We have also announced a number of other measures to support charities, in particular in the area of gift aid, including simplified forms and technology to facilitate use of gift aid by smaller charities. I will not anticipate at this stage the thinking of the Chancellor of the Exchequer, which will clearly be informed by the research to be published in the autumn. No doubt the Chancellor will have more to say on this subject in either the Pre-Budget Report or the Budget next spring.

Lord Elton: My Lords, is the Minister aware of the great importance to the voluntary sector of this scheme? The transitional scheme is due to finish in 2011, and if the research is only coming to heaven—

Noble Lords: Oh!

Lord Elton: My Lords, that is not always where research finishes up. As the research is only coming to hand in September, then 2011 is getting uncomfortably close for planning purposes. Will the Minister bear to the Chancellor the great importance of him coming to an early conclusion as well as a favourable one?

Lord Myners: My Lords, I am sure the research will be coming from heaven if the right reverend Prelate has anything to do with it. Of course the Chancellor is very seized by this issue and no doubt will be looking, at an early stage, to review the outcome of the research, which is being quite correctly carried out to better understand the motives behind giving and, in particular, any consequences of possible changes on those who are currently subject to higher rate as opposed to standard rate taxation. An informed decision will be taken in support of a sector that the Government support through more than £3 billion per annum of various tax reliefs and other kinds of support. As I said earlier, the Chancellor no doubt will have more to say on this in either the Pre-Budget Report or his next Budget.

Lord Howarth of Newport: My Lords, notwithstanding what my noble friend said in answer to the previous question, given that the prospects for lavish increases in grants in aid in the cultural sector are not perhaps as brilliant as I know he would personally hope, will he do his best to persuade the Chancellor to extend the gift aid scheme to include gifts of cultural objects to museums, galleries, libraries and archives; and also to extend the acceptance-in-lieu scheme to enable donors to receive tax benefits during their lifetime? Does he agree that unless we continue during the recession to build on recent achievements in fostering public/private partnerships, the public will not have the opportunities that they ought to have and which could be afforded to them?

Lord Myners: My Lords, my noble friend's interest in this area has been evident for many years. The Government have implemented the vast majority of the recommendations made in the Goodison review and keep under review those that have not yet been implemented. However, at this time we have to be very clear as to our priorities. It is also evident that gifts of a non-monetary nature can create serious problems and issues, as experience in the United States and Canada has recently shown. I can assure my noble friend that the Chancellor and the Secretary of State for the Department of Culture, Media and Sport regularly keep the issues under review.

Lord Mawhinney: My Lords—

Lord Newby: My Lords—

Lord Hunt of Kings Heath: My Lords, we have not heard from the Liberal Democrats yet.

Lord Newby: My Lords, does the Minister accept that the contribution which the corporate sector makes is very important in the financial and general health of many charities? Will the Government support the work of bodies such as Heart of the City, which works with companies in the City of London to improve their community investment programmes, to ensure that charities can benefit from the activities of companies in the communities in which they are based?

Lord Myners: My Lords, there are many in the City of London who could evidence more commitment to charitable giving and community support as a way of assuaging some unease that they may feel as a result of the past grotesque rewards that some have earned. More importantly, we encourage all companies not to take the easy option of reducing charitable giving and community support as the first cut they make in difficult economic times. I have made that clear to the chief executives and the chairmen of our major banks when I have met with them. We will not accept kindly a cut back in community support giving and engagement by our major banks at this time.

Samantha Orobator
	 — 
	Question

Lord Ramsbotham: To ask Her Majesty's Government why Samantha Orobator has not been repatriated from Laos to the United Kingdom, as Mr Bill Rammell, the then Minister of State at the Foreign and Commonwealth Office, informed the All-Party Group of the Abolition of the Death Penalty that she would be by the middle of June.

Lord Malloch-Brown: My Lords, we hope that Ms Orobator will be able to transfer to the UK before the birth of her child. We have proposed to the Lao authorities a memorandum of understanding to enable the transfer before the UK/Lao prisoner transfer agreement is formally ratified. However, it is unclear whether the Lao authorities will agree the transfer prior to payment of the $70,000 fine imposed on Ms Orobator in addition to her life sentence.

Lord Ramsbotham: My Lords, I thank the Minister for that reply. This case has considerable implications for other prisoners in other countries. In this case, the treaty that the Minister mentioned, signed on 7 May, was a general one. I understand that the application for Ms Orobator's transfer was forwarded on 17 June. A month has gone by and there is the problem of the last date by which she may be allowed to fly back by an airline. Bearing in mind that to facilitate this transfer she has revoked her right to appeal and any suggestion that she might have been raped in prison, has the Minister any hope that this may be speeded up?

Lord Malloch-Brown: My Lords, the noble Lord is of course right. Time is running out; 12 August is thought to be the last date by which she could travel. We have had regular consular contact with her, most recently at the end of last week. I am pleased to say that she and the unborn child are in good health. They have been visited by a doctor attached to the Australian embassy in Laos. The issue is that the Laotian authorities want the fine imposed on her paid before she can leave. This is a difficult issue. It is not something that the UK Government feel able to pay and yet she is a woman of limited means. Unless they are willing to waive that or others are willing to pay, this will remain a real obstacle to her early return.

Lord Howell of Guildford: My Lords, since by my calculations the Minister has one more Foreign and Commonwealth Question to answer tomorrow before the Summer Recess, I shall keep my arrivedercis for that occasion. In the mean time, in this difficult case, while we could not for one moment condone any kind of drug trafficking or that sort of thing, we would fully support any efforts the Minister made were there room for additional pressure for compassion. Would he accept that?

Lord Malloch-Brown: My Lords, I assure the noble Lord that we are having regular contact with the Laotian authorities to try and persuade them to proceed with the prisoner transfer. Others are looking at ways that perhaps some payment could be made. We are trying to get clarity from the authorities on whether partial payment would be sufficient. The noble Lord should be in no doubt that we are leaving no stone unturned to get this unlucky woman and her child home.

Lord Christopher: My Lords, can the Minister give us some information about the fine? What sort of sum are we talking about? Are the Government prepared to see it paid even though they perhaps cannot pay it themselves?

Lord Malloch-Brown: My Lords, it is a fine of $70,000. She was carrying a large amount of drugs on her at the time of her arrest. As the noble Lord, Lord Ramsbotham, said, she has not appealed the conviction. The fine is part of her sentence. The whole House would agree that it is difficult for Her Majesty's Government to pay that fine directly. There are those who see it as an act of clemency or support to her that they find some way to offer partial payment. We would certainly not stand in the way of that. We would encourage it.

Lord Campbell of Alloway: My Lords—

Lord Avebury: My Lords—

Lord Hunt of Kings Heath: My Lords, I wonder if we could hear from the noble Lord, Lord Avebury.

Lord Avebury: My Lords, it was reported in the Vientiane newspapers that Ms Orobator had indicated that she wished to appeal. Can the Minister confirm that she told the consul that she did not intend to appeal and that the 21 days allowed for that purpose have expired? On the fine, do we not have to look at a more general solution to the problem, apart from the case of Ms Orobator herself? While I appreciate that the Government cannot themselves provide the money to pay the $70,000, or whatever it is, in this case, or any future fines that may be imposed on people as a condition of their being allowed to invoke the repatriation agreement, would the Minister at least indicate that the Government will give their blessing to any independent fund established for the payment of this fine and any others that may enable people to be repatriated?

Lord Malloch-Brown: My Lords, her situation as someone pregnant with a child is one of particular humanitarian concern, but I do not want anyone to be misled about the gravity of her offence. She was found with 680 grams of heroin concealed on her body at the time of her arrest. I can confirm to the noble Lord that she has waived the right to appeal; she accepted the sentence. The difficulty is that, under the prisoner transfer agreement, we would not, when she returned here, have the power to enforce her to make that payment, which is why it has become such an obstacle. However, in this case we would have no difficulty with those who wished to support her making that payment.

Lord Campbell of Alloway: My Lords, I totally accept everything that the Minister has said. It is a serious matter. However, could an application be made to the court to extend the time for payment?

Lord Malloch-Brown: My Lords, the difficulty is that the Laotian authorities may well consider that once she has returned here their ability to enforce any extension on payment has been removed. Let me again assure the noble Lord that we are determined to find a way through this. While she is in good health and being well cared for, it is obviously enormously important that she comes home.

Hereditary Peers By-Election
	 — 
	Announcement

The Clerk of the Parliaments announced the result of the by-election to elect a Cross-Bench hereditary Peer in accordance with Standing Order 10.
	Twenty-seven Lords completed valid ballot papers. A paper setting out the complete results is being made available in the Printed Paper Office and the Library. That paper gives the number of votes cast for each candidate. The successful candidate was Lord Aberdare.

Live Music Bill [HL]
	 — 
	First Reading

A Bill to amend the Licensing Act 2003 with respect to the performance of live music entertainment; and for connected purposes.
	The Bill was introduced by Lord Clement-Jones, read a first time and ordered to be printed.

Scottish Parliament (Elections etc.) (Amendment) Order 2009

Link to Grand Committee Debate

Statistics and Registration Service Act 2007 (Disclosure of Higher Education Student Information) Regulations 2009

Link to Grand Committee Debate

Motions to Approve

Moved By Lord Brett
	That the draft order and regulations laid before the House on 10 and 17 June be approved.
	Relevant documents: 17th and 18th Reports from the Joint Committee on Statutory Instruments, considered in Grand Committee on 8 July.
	Motions agreed.

Justice and Security (Northern Ireland) Act 2007 (Extension of duration of non-jury trial provisions) Order 2009

Link to Grand Committee Debate

Motion to Approve

Moved By Baroness Crawley
	That the draft order and regulations laid before the House on 8 June be approved.
	Relevant documents: 17th Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 8 July.
	Motion agreed.

Children Act 1989 (Higher Education Bursary) (England) Regulations 2009

Link to Grand Committee Debate

Safeguarding Vulnerable Groups Act 2006 (Regulated Activity, Miscellaneous and Transitional Provisions and Commencement No. 5) Order 2009

Link to Grand Committee Debate

Motions to Approve

Moved By Baroness Morgan of Drefelin
	That the draft order and regulations laid before the House on 16 and 17 June be approved.
	Relevant document: 18th Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 8 July.
	Motions agreed.

Energy: Low Carbon Transition Plan
	 — 
	Statement

Lord Hunt of Kings Heath: My Lords, with the leave of the House, I shall repeat a Statement made in another place by my right honourable friend the Secretary of State for Energy and Climate Change. The Statement is as follows:
	"All of us in this House know the gravity of the challenge that climate change poses. We know that to rise to the challenge will mean comprehensive changes in our economy and our society. We are one of the few countries to exceed our Kyoto targets; we are now the leader for offshore wind; and we are the first country in the world to legislate for carbon budgets. But the proposals published today are the first time we have set out a comprehensive plan for carbon across every sector—energy, homes, transport, agriculture and business.
	A decade ago the carbon impact of most policies was not even measured. Last year, this House passed legislation for legally binding carbon budgets, measurable caps on carbon. This was a dramatic change in approach. But we need to go further because every part of government needs to be responsible for meeting these budgets.
	So I can announce that not just the country as a whole, and not just the biggest departments, but from today, every department has its own carbon budget. Having been the first country in the world to set legally binding carbon budgets, we are now the first country in the world to assign every department a carbon budget alongside its financial budget.
	The plan sets out how we will meet the carbon budgets set out by the Chancellor for an 18 per cent reduction in today's levels by 2020, or 34 per cent compared to 1990, part of the necessary steps we have to make to get a global deal this December. Let me announce to the House how we make the 459 million tonnes of carbon savings to meet our carbon budgets. In agriculture and waste, there will be a 6 per cent cut in emissions—20 million tonnes—by the budget period centred on 2020, made possible by new policies on waste and new commitments on farming. In the transport sector, there will be savings of 14 per cent by 2020, or 85 million tonnes, as set out in my right honourable friend's sustainable transport strategy published today. This includes plans for electrification of rail, tougher car and van emission standards, and the new £30 million fund to get low-carbon buses on the road in the next two years.
	We are also doing more to bring about the transition to electric cars, with new funding making possible a recharging infrastructure in up to six cities. And across business and the workplace, we show how we can make 41 million tonnes of savings, or 13 per cent on today, including with the carbon reduction commitment being introduced next year.
	The most important reductions to meet our carbon budgets come in the way we generate and use energy. In the power and heavy industry sector, we show how emissions will be reduced by 22 per cent, or 248 million tonnes. With North Sea gas production declining, if we carried on with business as usual, over the next decade our imports of gas would double. On the basis of the low-carbon choices I announce today, our forecast is that, rather than double our gas imports, they are kept down to 2010 levels for the whole of the following decade. So with more low carbon, home-grown energy, we avoid an ever-increasing dependence on imports.
	I have listened to representations on renewable energy and I have concluded that for reasons of energy security and climate change, it is right to go ahead with plans for 15 per cent domestic renewable energy by 2020. In the final decisions of the Government's renewable energy strategy that I have published today, we show how we can secure around 30 per cent of electricity from wind, marine and other renewable sources. We are also publishing the shortlist of Severn tidal schemes.
	I believe it is right to go ahead with our plans for new nuclear power stations. We will publish our national policy statements on nuclear and other energy issues in the autumn, and the industry is planning at least 12.4 gigawatts of new stations, more than current existing capacity.
	Alongside the most environmentally stringent coal conditions in the world, the Government have proposed up to four carbon capture and storage projects and we have proposed legislation in the next Session of Parliament to make it happen.
	Let me be clear. I believe that when it comes to the future of energy in Britain, clean coal has an essential role to play. Renewables, nuclear, clean fossil fuels, as this plan sets out, are the trinity of low carbon and the future of energy in Britain. What would be fatal is to pick and choose between them. All of them should be part of our future energy mix. In total, our plans show we will get 40 per cent of our electricity from low carbon energy by 2020 and more in the years afterwards. To deliver the changes in our energy supplies between now and 2020, we must make it easier for investors to turn low carbon projects into reality. Having tackled rules on planning, I believe we now need to do more to address the issue of grid connection.
	So I am today announcing that I will exercise the reserve powers provided under the Energy Act 2008 for government, rather than the regulator, to set the grid access regime. The new rules should be in place within 12 months and, instead of waiting for over a decade for grid connection, as can happen now, we can get the fast access to the grid that renewable projects need. We also know that as we generate power in a cleaner way, we also need to use energy in a smarter way in our homes. In total, in the plan, we show how cleaner sources of heat and better use of energy can cut emissions from our homes by one quarter compared to today and save 57 million tonnes.
	We must transform the information on energy use available to all of us. So, as well as putting in place new funding today for smart grids, we are proposing to roll out smart meters to 26 million homes by 2020. We need new incentives, as well as better information. The plan makes clear that, on energy efficiency, we need a house-by-house, street-by-street transformation, like the transition from town gas to North Sea gas in the 1970s. Over the next decade, our plan sees families not having to pay up front but being able to spread the costs over many years, paid for out of the savings on their energy bills. Today, we take the first steps with the first pilots of the new pay-as-you-save scheme.
	As well as information for individuals and the right incentives, we know from the Transition Towns movement the power of community action to motivate people. So, we will provide £500,000 each to fifteen areas of the country for people to come together to trial the newest technologies and be beacons for how other communities can cut their carbon emissions. From next April, I can confirm that individuals and communities alike will be able, for the first time, to generate their own renewable power and sell it back to the grid with guaranteed feed-in tariffs. The details of the rates and levels on which we are consulting are set out today.
	We need reforms not just in the way we produce energy and in how we use it, but also how it is regulated. In the energy world of today, unlike 20 years ago, the job of the regulator is to help deliver on our climate change commitments because failure to act on this now will store up greater cost later. So, I propose to make changes to Ofgem's principal objective. For the first time, reducing carbon emissions, as part of protecting the future consumer, will be explicitly set out in its guiding mission.
	Competition is essential but we know from the experience of prepayment meters that it has not delivered for all consumers. So I will also make it clearer in Ofgem's principal objective that, when competition does not deliver, it is Ofgem's duty proactively to stand up for consumers up and down this country. With greater expectations of the regulator should come greater powers when it needs them. So I also propose to legislate to provide Ofgem with new tough powers to take action where it believes there is anti-competitive practice in the generation of electricity.
	Strong regulation is all the more important given the upward pressure on energy prices in the coming years. Making the energy transition will have costs but, for households, they are significantly offset by savings on energy efficiency and reduced energy demand. Today's plan will not increase average household energy bills by 2015, compared to now. For households in 2020, the plans today will mean an average of 6 per cent on domestic bills, or £75 a year, compared to today; and, including all previous policy announcements on climate change, the figure is 8 per cent.
	Given the costs of transition and the priority of tackling fuel poverty, I believe we need to do more to protect the most vulnerable consumers. So, today, I propose to reform the system of social tariffs. At the moment, more than 800,000 households receive discounts and other help with their energy bills. It is part of a voluntary agreement with the energy companies. I propose that after the voluntary agreement ends in 2011 discounts for the most vulnerable will continue not from a voluntary arrangement but through legislation for compulsory support from the energy companies. We will legislate to increase the amount spent and intend to target new resources at the most vulnerable consumers, particularly older, poorer pensioners.
	As we make the transition to low carbon, we must do so on the basis of energy security and fairness, and we must also seize the industrial opportunities using the money the Chancellor has allocated in the Budget. We have set out plans for the carbon capture and storage industry and, today, new investment in how Britain can lead in nuclear manufacturing.
	In renewables, Britain has half the usable tidal energy in Europe. Today I am committing up to £60 million to build our wave and tidal industries for testing new technologies, expanding port access and deployment in key parts of the country. We also need to nurture the offshore wind industry, where we have a unique resource. I am making available up to £120 million to support the growth of a world-leading offshore wind industry in Britain. As well as supporting the demonstration and testing of offshore wind, the money will be used to attract offshore wind manufacturers to the UK. We estimate that these investments will help nurture industries that can support hundreds of thousands of jobs—investment we can make only today because, even in the tough times, we made the choice to invest in the economy of the future.
	Climate change is the moral issue of our time. In five months, the world must come together at Copenhagen and follow through on the commitment of world leaders last week to stop dangerous climate change. Today we show how Britain will play its part. Our transition plan is a route map to 2020. It strengthens our energy security. It seeks to be fair in the decisions we make. Above all, it rises to the moral challenge of climate change. This is a transition plan for Britain. I commend it to the House".
	My Lords, that concludes the Statement.

Lord Taylor of Holbeach: My Lords, I thank the Minister for repeating the Statement made in another place earlier today, and for making available an advance copy of this lengthy Statement. It is a challenge to absorb its contents, but noble Lords will have also known much of it from the press coverage over the weekend and throughout the week, as well as the now-obligatory "Today" programme interview.
	We welcome the Statement as an important declaration of intent on the Government's part in tackling climate change and carbon emissions, as well as seeking to bring together something that could be tagged as an energy policy. That is long overdue, but when the Government have provided us with 15 Ministers in 12 years, it is not surprising that they have found it difficult to find a coherent voice in this key policy area. Do we not have the lowest percentage of energy generated from renewables within the EU?
	We have no argument with the Government in seeking to reduce carbon emissions by 34 per cent by 2020—or, if we take today's figures, by a more modest 18 per cent at current levels. It will be the minimum needed to be on course for the 2050 target of 80 per cent. I note the climate change committee's welcome, but point out that it is seven months since the committee published its report to which this is the Government's response.
	It is appropriate that the Statement starts with the Government's own role. The Sustainable Development Commission's 2008 report stated how variable the different departments are in achieving energy efficiency and performing to target. The Government should be taking an exemplary role in this matter, and they need to demonstrate that they are serious in their own endeavour if they expect business, households and consumers to do the same. There are too many areas where the message from the Government is mixed, or where they have failed to develop policies that reinforce this drive. The Minister will remember that, when discussing the climate change legislation, we wanted to include a provision that certain statutory instruments complied with the purposes of the Climate Change Act or furthered its purpose. This move was initially welcomed and accepted, the Minister in this House showing commitment to the cause, only for it later to be disregarded.
	The Statement promised 6 per cent cuts in emissions from agriculture and waste. Can the Minister further elaborate on how this will be done without passing greater burdens on to farmers, to whom we look to provide more of the nation's food? What funding stream do the Government intend to provide for this?
	A substantial reduction of 14 per cent in transport emissions is likely to be heavily dependent on government funding. How will this be paid for? The Statement mentions electric cars. This simply illustrates one of the many commitments the Statement contains without declaring how it will be funded. Parliament and people are in the dark on public expenditure as, unprecedentedly, the Autumn Statement will not be delivered this year. It is not unreasonable to ask where the funding is coming from.
	I do not doubt the need for the Government to set these targets, but the delivery of any government strategy depends on an accurate assessment of the cost involved within the public sector and from businesses, households and consumers. Without this, the Statement is merely a statement of good intent, rather than a comprehensive programme of action.
	Of course, the Government are right to recognise the role of renewable energy. In a pre-Statement interview on the "Today" programme, the Secretary of State emphasised the need for land-based wind generation, and acknowledged that it was not enough simply to rely on offshore generation. How do the Government intend to use the planning system to deliver on this account? It has been estimated that the extra turbines will pass on a possible extra cost of £200 per annum to households. It is also estimated that the current rate of construction of these turbines is one a week. Does the Minister appreciate the physical challenge that this presents? The Statement mentions the Severn tidal schemes. Have the Government worked out how to deliver tidal energy from the Severn estuary without damaging it? How dependent is this programme on the delivery of the strategy?
	I hope the noble Lord will get the drift of my argument. Much of what the Statement contains is good and worthy stuff, but without the reassurance that the Government are prepared to deliver, it remains primarily aspirational and lacks the counterbalance of a full financial impact assessment. The Statement talks about building more nuclear power stations. However, we will have to wait until the autumn for the national policy statement on nuclear energy, although it is obviously a key part of the strategy. In the mean time, the Government still have no plan regarding what to do with existing nuclear waste. The strategy announced today can hardly be comprehensive if it does not include this.
	The Statement also announces that it will make changes in the energy supplies between now and 2020 to make it easier for investors to turn low-carbon projects into reality. How do the Government plan to do this? Will it involve further financial incentives or is it going to depend on an easing of planning restrictions.
	It would not do the Statement any injustice to suggest that it reads like a wish basket. For example, the noble Lord introduced the concept of smart meters into the Energy Act last year and it appears in this Statement. What progress is being made to develop this plan? How far have the Government got in discussing this with energy providers? Likewise, why have the Government resisted the concept of fixed feed-in tariffs? A debate in this House led from these Benches provided for this in the Energy Act when the Minister finally conceded the power of our argument.
	In short, while we welcome the Statement and the White Paper, for it aspires to be on the side of the angels, such virtue has a price and the Government in the Statement have been coy not only on how big the costs will be but, more critically, on where the funding is coming from and who will end up paying. Despite the Statement promising that there will be no increase in household fuel bills by 2015, I expect most people will be in a family household that will have to pick up the bill.

Lord Teverson: My Lords, I, too, thank the Minister for repeating this Statement. I know the Government are keen to get on with the legislative programme of the House today, but given the importance of this subject, it was fitting that this Statement was heard, and I thank Ministers and the Official Opposition for allowing it to come forward.
	This is an important Statement. It moves from discussions on the Climate Change Bill to statements of intent, targets and ideas about legislation to taking action, although I note that the shortest chapter in the Renewable Energy Strategy is concerned with implementation, so perhaps there is a little more still to do there. Given the shift in thinking from considering carbon dioxide to assessing greenhouse gases as a whole—in my opinion that is a correct shift—it is interesting to note that the 34 per cent reduction comes down to 18 per cent, which is very manageable and is important to achieve, although many of the relevant reductions have already been achieved. In that sense much of the low-hanging fruit has already been taken.
	We are looking at this strategy up to 2020 in an environment of very tight public cash availability. Much of the investment will need to be private investment but we are still subject to a low carbon price. I have seen no reference to a carbon price in the documents or in the Statement, but clearly it will be one of the main drivers for the private sector. I do not think there is any real understanding of how we will ensure that those price signals are right to encourage the private sector to make the right decisions in this area. Indeed, I think that the ETS is mentioned in only one box in the accompanying papers.
	These Benches welcome much that is in the Statement and the strategy. The feed-in tariffs are to be implemented in April, but what about heat? The Statement mentions the grid in that connection but there is no mention of heat tariffs. I should be interested to hear about that. We welcome the strong focus on Ofgem reducing carbon emissions. However, on first reading the Statement, I was alarmed to note how uncompetitive the Government feel the electricity supply industry is, given that many years' study have been devoted to that matter.
	We also welcome the measures concerning grid access. The fact that it can take 10 years to get connected to the grid, as the Statement says, is clearly unacceptable, and has been for some time. Do we not also need a smart grid to allow access for all the different types of electricity that will be available? What is the Government's view of the European supergrid, which will lead to much greater energy independence not just for us but for our European partners? Do the Government take a more favourable view of that now? I also welcome the introduction of departmental carbon budgets. This may not be the Minister's responsibility but it would be nice to see both Houses having their own carbon budgets. Perhaps that matter should be taken up elsewhere.
	However, we have a history of relative failure in this area. Sweden has already achieved a figure of about 30 per cent with regard to renewable energy. The figure for Germany—a large economy—is 10 per cent. We are still at 2 per cent, and are bottom of the league. As regards aspirations for manufacturing, noble Lords around the House agree that we want to stimulate a renewable energy industry in this country. However, we have a track record of recent closures in that regard. In terms of costs to consumers, I am pleased to see that social tariffs, which have worked only partly, will be overhauled. But surely with fuel poverty having gone up substantially and fuel prices going up under this regime, we should introduce something more radical whereby consumers pay less for lower consumption and more for greater consumption—the opposite way round to the normal thinking on this issue.
	I have asked the Minister a number of Written Questions on skills needs. I am still unconvinced that we have sufficient staff with the relevant skills in the nuclear or the renewable industries. Smart meters are rather old news but I am glad to see that there is a commitment to implement them by the date set out.
	Insulation of the existing property stock clearly must be one of the most important areas. Although I accept that we need a programme that is similar to the North Sea gas conversion programme, the big difference is that households did not have to pay for that. They might have suffered inconvenience when someone changed their fittings or appliances, but they had no upfront costs to meet. Although there are various schemes to avoid cost, it would be dangerous to think that it will be quite as simple as that.
	Beyond that, my questions for the Minister are as follows. The airline industry was not mentioned in the Statement, though there is a small reference to it in some of the supporting documentation. Is the airline industry included in these reduction figures? Will the carbon reduction commitment mentioned in the Statement at last discriminate between renewable and non-renewable electricity? Pre-payment meters are one of the greatest scandals of the energy supply industry and fuel poverty in this country, with pre-payment meter payers paying some £95 more per year for their energy bills. Will that be solved more urgently than the smart meter programme? It is clearly an area of major social injustice. From these Benches, we welcome this Statement. It is now all about implementing it and making it happen.

Lord Hunt of Kings Heath: My Lords, I thank both noble Lords for their general welcome for the Statement and the various documents that accompany it. The noble Lord, Lord Taylor, said that the Statement was long overdue. However, the Government have made a series of announcements over the last year or two, culminating in the transition plan, which sets out a coherent path for our transition to a low-carbon economy and deals with the critical issues that we face on energy policy. There have been announcements on new nuclear energy, coal CCS, our intention to hit the target on renewables of 15 per cent by 2020 and our focus on energy efficiency. These all represent a coherent approach to energy policy.
	The noble Lord, Lord Taylor, and the noble Lord, Lord Teverson, both spoke about where we stand on renewables. It is true that, in comparison with some European countries, our proportion of renewables is low. Much of that can be explained by other countries having made use of the natural resource of hydropower, which they have had for many years. My key point is that noble Lords should look at the increase that we have seen in the last few years. For instance, renewable electricity accounted for 2.3 per cent of electricity generated in 2003; that was up to 5.5 per cent by 2008. That suggests to me that we are making considerable progress, that we have a great deal of momentum in the system and that we can expect to see considerable increases in the future.
	The noble Lord, Lord Taylor talked about the variability of departments. I agree that departments need to set an example. He kindly did not mention the energy performance of my department's new building, which he will know is not the highest—or, rather, the lowest. However, it is working with the Carbon Trust and has a commitment to increase its energy efficiency by 10 per cent over the next year. The department accepts the challenge to practise what it preaches. Of course, carbon budgets by themselves are important in driving policy change in different government departments. The noble Lord, Lord Taylor, who knows a great deal about agriculture, asked whether a carbon budget would, as far as Defra is concerned, have a negative impact on agriculture. It need not. When I was at Defra, I took part briefly in discussions between the department and the agriculture and land sector on the best approach to reducing GHG emissions. I was encouraged by the positive view that was taken by people in the farming sector about their ability to do it. Of course, they will need encouragement, advice and support, but so far the discussions have been fruitful.
	As for the planning system, it was always disappointing that the noble Lord's party opposed key elements of our reform of the planning system. We think that the reform is very much in the national interest. Noble Lords will know that, historically, there have been delays in the planning system, particularly when it comes to renewables, but the same issues come up with other electricity generators. We will be publishing our national policy statements in the autumn. That was always the timetable. We think that that will be an important step along the way to a much more consistent and coherent planning system.
	As to the supply chain on wind, yes, it is important that we have a good UK supply chain. Alongside this, the low-carbon industrial strategy sets out a range of actions that the Government are taking to support the UK supply chain industry. There is no reason why we cannot use the transition to a low-carbon economy as a way to grow the economy and grow high-quality jobs within the United Kingdom.
	As for the Severn, we are announcing the short-listed sites. An important part of the assessment is to deal with the issues that the noble Lord raised about the environmental assessment, the impact on the environment and what has to be made good under European legislation if one of the schemes is selected. We are very focused on those matters.
	As far as nuclear power is concerned, yes, it is very important that we make progress on publishing the national policy statement. As the Statement said, it is due to be published in the autumn. We have to get it right, but I understand the need for speed as well.
	I was asked about financial incentives in relation to renewables. We will consult on increasing the financial incentives for offshore wind. On wave and tidal energy, we are prepared to look again at financial incentives if we receive evidence that suggests that we ought to do so. That is the basis on which we introduced the ROC banding system, which we debated only about nine months ago.
	I welcome the general support of the noble Lord, Lord Teverson, for the Statement. He described what we are doing as moving from a statement of intent to one of action. I am glad to endorse that analysis.

A noble Lord: My Lords—

Lord Hunt of Kings Heath: My Lords, the 20 minutes taken do not eat into the 20 minutes for Back-Benchers. As the two noble Lords took 13 or 14 minutes, I think that I am allowed some discretion to answer the points. As I say, the time does not eat into the 20 minutes for Back-Benchers.
	The noble Lord, Lord Teverson, talked about tight cash and the scale of investment needed by the private sector. He is absolutely right. The best approach that we can take is to present a cohesive policy and stability and deal with issues of planning and access to the grid. In the White Paper, he will see that there is a chapter looking ahead to 2030 to 2050. We are doing further work analysing scenarios for that period, which we hope to publish next spring. We recognise that it is now and in the next few years that companies will make investment decisions that will impact, for instance, on energy supply going from 2030 to 2050, so I agree with his remarks on that.
	I know that companies are concerned about the low carbon price. There is to be a tightening of the EU ETS cap from 2013. I think that it must follow that, if there is a successful conclusion to Copenhagen, the EU will have an opportunity to look at its own targets again and potentially to tighten further the EU ETS cap.
	We always said that we thought that it would be 2011 before the renewable heat incentive could be brought in. The noble Lord will recall that this is a completely new policy. We need to get the work right and we hope to consult on it later in the year.
	As for grid access, interim changes have been made introducing a system of connect and manage, which allows early access to the grid, but we must have permanent arrangements. Ofgem and the companies have not been able to reach agreement on this, which is why the Government are going to intervene. We will publish our deliberations in due course.
	Finally, I understand the concerns of the noble Lord, Lord Teverson, about ensuring that we have the right skills in nuclear, renewables and, indeed, coal carbon capture and storage. We are very much committed to working with our partners in government and business to make sure that we do. The work of the National Skills Academy is one example of how we intend to do it. I thank both noble Lords for their overall welcome.

Lord Clark of Windermere: My Lords, I very much welcome this far-sighted announcement by the Minister. The noble Lord has followed the intention to reduce CO2 by the means of emissions and energy distribution. Does he accept that there is another way to reduce CO2, which is to remove it from the atmosphere? Will he confirm that it is the Government's policy to increase the amount of woodland planted in England by 10,000 hectares a year for the next 10 years, thereby reducing the carbon emissions over this country by 50 million tonnes by 2050? I declare an interest as chair of the Forestry Commission.

Lord Hunt of Kings Heath: My Lords, my noble friend speaks with great authority and he is right to point to the positive impact that forestry and woodland can have. I am glad to confirm that the Government very much accept the point that he makes.

Lord Lawson of Blaby: My Lords, is the Minister aware that, whatever view one takes of climate change, to pretend, as this Statement does, that the enforced move from cheaper to dearer energy, greased by lavish bribes at the taxpayer's expense, is economically beneficial displays a level of economic illiteracy that even a first-year student should be ashamed to exhibit? Further, when the Statement boasts that this is the first country in the world to set legally binding carbon budgets—not to mention the departmental budgets—is he aware that that is so only because there is not a single other country in the world that has the slightest intention of pursuing such a foolish and damaging policy?

Lord Hunt of Kings Heath: My Lords, when I saw the noble Lord, Lord Lawson, sitting there, I did not think that he would take a positive approach to this announcement. I certainly have been proved right on that. I do not agree with him at all. It is, in fact, a mistake to think that remaining as a high-carbon-emitting country is somehow an easier and cheaper option; nor do I accept his premise that the UK is alone in understanding that we need to move to a low-carbon world and that, to do so, decisions have to be taken. We believe that carbon budgets are the way in which to ensure that individual government departments develop their policies to ensure that they are consistent with a low-carbon economy. I would just say to the noble Lord that the recent G8 meeting—

Lord Lawson of Blaby: Oh!

Lord Hunt of Kings Heath: My Lords, it showed a commitment among the G8 countries to take action towards ensuring that climate change does not increase by more than 2 degrees centigrade. I think that that is significant. It gives me optimism for agreement in Copenhagen. I should also say to the noble Lord—he will not like it when I mention the noble Lord, Lord Stern, because he does not agree with the noble Lord's analysis—that the point that the noble Lord, Lord Stern, made is that the sooner this country gets on with moving to a low-carbon economy, the cheaper it will be. So I do not agree with the noble Lord, Lord Lawson.

Lord O'Neill of Clackmannan: My Lords, I congratulate my noble friend on this very balanced Statement, which deals not exclusively with generation but also with the needs of our less well-off citizens and longer-term environmental issues. Perhaps I may say as chairman of the Nuclear Industry Association that, although we are grateful for the warm words, we need rather more if the new power stations are to be connected to the grid. I am not quite sure what is meant in the White Paper when it states that later this year there will be,
	"a high level vision of a future smart grid".
	That is an exercise in modern speak about which some of us are a bit cynical. Later this year, a statement will tell us that the national grid will be in step with the rest of the electricity industry in terms of planning for the future. I think that insufficient attention has been given to that. I am not greatly reassured by expressions such as "high level vision" because I am not sure what they mean.

Lord Hunt of Kings Heath: My Lords, I welcome my noble friend's first comment. There are two issues. First, we have to ensure that the grid is fit for purpose in view of the enormous developments that will take place in electricity generation. I have already spoken about the Government's intention to intervene because of the disagreement between Ofgem and the companies, and we will do that. A smart grid is somewhat different but is very much linked to the idea of smart meters. It is about ensuring that we have a system that is as efficient as possible with regard to electricity transmission but which also links into smart meters. Such meters give householders and customers much more control in terms of information about their energy use and their ability to switch suppliers, and they will allow the generating system as a whole to be used in a much more efficient and effective way. The other point, which I did not answer earlier, was about the super grid, which is a proposal that has been put forward. We are interested, but it is very expensive. I have met the EU official who is leading work on that and I would be happy to provide more information on it in due course.

Lord Bradshaw: My Lords, as a member of Sub-Committee B, which has investigated the energy sector and to which the Minister gave evidence, I welcome the report as being a prompt response to many of our recommendations. However, I draw the Minister's attention to the somewhat dismissive way in which it deals with the value of such things as railway electrification, more or less saying that electricity has to come from somewhere and the railway does not carry much traffic. We know that small amounts of electrification of the railway will add considerably to the amount of use that can be made of the rest. Perhaps he would bring that to the attention of the Secretary of State. I also warn him that £30 million spent on new buses is probably a waste of money if the people who let the contracts for the use of buses make it a condition that they emit less energy.

Lord Hunt of Kings Heath: My Lords, I am glad to be able to show that the Government listen to your Lordships' Select Committees. The report was extremely helpful. I do not need much persuasion on the benefits of rail electrification. Any comments on the impact on the grid and electricity use should not be taken to mean that we do not support my noble friend Lord Adonis in his encouraging attempts to enhance the rail network as a whole. The importance of today's White Paper and the associated document produced by my noble friend Lord Adonis is to show the consistency of approach across Whitehall. That is where carbon budgets are so important. The Department for Transport has to accept responsibility for carbon emissions in its sector. That should drive the right policies and I am sure that the noble Lord would welcome what is a much more co-ordinated and holistic approach.

Lord Mackay of Clashfern: My Lords, I have some familiarity with the way in which ordinary budgets work. If we exceeded them, my noble friend Lord Lawson used to come down on us extremely heavily. What happens with a carbon budget? When you reach the budgetary level, do you have to turn off the lights?

Lord Hunt of Kings Heath: No, my Lords, essentially I hope that there will be a similar stringent approach to departments that do not meet their carbon budgets. In the end, if they do not meet their carbon budgets, they will have to pay financially for that. The noble and learned Lord allows me to make clear that carbon budgets will indeed have a powerful impact on the policies of government departments.

Lord Stoddart of Swindon: My Lords, first, I wish that Ministers would not say that climate change is a moral issue of our time. It is not for a secular Minister of the Crown to tell us what should be the great moral issues of our time. Many would not agree that this is one of them. Was there any consultation with representatives of the very large body of opinion that does not agree with the consensus on the carbon situation?
	Secondly, I understand that the Government are supporting 24,000 megawatts of onshore and offshore wind turbines. Does the noble Lord agree with the figures that have been bandied about for the capital cost of construction of £90 billion, plus £10 billion for connection to the grid? Is that not a huge and uneconomic cost for plant with a load factor of only 30 per cent? It is the worst option of all the renewables options available.

Lord Hunt of Kings Heath: My Lords, I take the noble Lord's point about morality, but the reality is that climate change is one of the most critical issues that we face. That is why it is so important. I know that the noble Lord is not convinced of the science. He is perhaps not alone in this House. I am certainly not unaware of those views, but the overwhelming scientific consensus—the work of the IPCC—is clear about the hugely negative impact that climate change is having and will have in future. We have to make the appropriate arrangements both to deal with it and adapt to it.
	In the past few weeks, the noble Lord has asked a series of Questions for Written Answer about the cost of wind farms. I understand his concern. Yes, there is clearly a cost to renewable energy. The points he raises about load factor and the intermittency of wind are true. That is why we believe that we need to pursue a diverse energy policy. We are committed to 15 per cent renewable energy by 2020. We think it right to go down that route. We have tremendous natural resources to take advantage of that, but that is why we have also supported the development of other energy sources. We believe very strongly that our approach should be to have a diverse energy supply.

Lord Eden of Winton: My Lords, will the noble Lord spell out more precisely the Government's estimates of the taxation implications of the policy that they have just announced? Is he aware of the very serious historical in-depth studies that question the degree to which the phenomenon of global warming is actually attributed to mankind and man's activities? What proportion of the global warming taking place do the Government perceive as being the responsibility of humankind rather than natural cycles?

Lord Hunt of Kings Heath: My Lords, on the question of science, I can really only repeat what I said to the noble Lord, Lord Stoddart. The main advice that we take comes from the IPCC. The evidence that the IPCC has assembled is that climate change is indeed a phenomenon that is happening and that much of it is indeed manmade. It is on that basis that we are bringing forward these policies.
	On the question of the cost of the proposed measures, there is an analytical annexe to the White Paper which has a number of tables about the cost of bills and takes account of energy efficiency. We should not knock the thought of energy efficiency, because the evidence is that such measures work. Essentially, Table 16 says that if you take account of the impact of all climate change policies, including some of the costs to which we have already referred in this Statement about renewables, but also the reduced costs through greater energy efficiency, an average householder's bill would increase by about 8 per cent, or £92 per householder, in 2020.

Lord Lea of Crondall: My Lords, this Statement is a step forward in the Government putting their cards on the table. We must all do our homework and look especially at the annexe. I have some sympathy with the question raised by the noble and learned Lord, Lord Mackay of Clashfern, in this respect. During the passage of the Climate Change Bill, six or nine months ago, my noble friend Lord Rooker indicated that there was a debate to be had about hypothecation of carbon budgets in the traditional financial sense of the word "budget". I suppose that if you say carbon is £30 per tonne, you can make corresponding money tables to these tables.
	Hypothecation will be an important question. If people are going to pay more petrol tax and more for a lot of other things—the price mechanism is the main way to change people's behaviour—they will want to know that it is not regressive. Indeed, the Government have committed to that. How are we going to ensure that people know that the Treasury will not just use the money for something else and that the Treasury is half way to agreeing the principle of hypothecation? Would my noble friend care to comment?

Lord Hunt of Kings Heath: Not really, my Lords. Talking about Treasury hypothecation usually lands Ministers in trouble. There are two points to be made. First, as was debated during proceedings on the Energy Bill and the Climate Change Bill, it is important that there should be transparency. That is why we have been very clear about what we believe to be the additional costs that householders will have to pay as a result of all of the climate change policies that are taking place.
	Equally, when it comes to price and tariffs, we have to ensure that the system is fair. That is why we are very keen to ensure that Ofgem has the powers to intervene where necessary. The other side of the coin is that we have to help householders to become more energy efficient, to give them support, and to have new mechanisms so that when it is expensive for them to take measures they can do it in an affordable way and with a payback period over the length of any loan that might have to be taken out.

Baroness Maddock: My Lords, I have not had time to read the accompanying documents. In reference to the energy efficiency of homes, can the Minister whether there are any new measures to deal with the private rented sector where many elderly people on low incomes live?

Lord Hunt of Kings Heath: My Lords, we fully recognise that that is an important area. We do mention it and I would be very happy to send further details to the noble Baroness on that important point.

Lord Waldegrave of North Hill: My Lords, I broadly welcome the thrust of the policy but I think it is too complacent on the shape of the British civil nuclear industry which, in the lost decade since the Government's first White Paper, has virtually disappeared. It will take far more than is in this White Paper to resuscitate it.

Lord Hunt of Kings Heath: My Lords, I am more optimistic than the noble Lord. I chaired a meeting of the Nuclear Development Forum, which brings together many people in the industry. There is a great deal of enthusiasm. I also spoke at a conference run by EDF for potential suppliers within the industry to encourage a UK supply chain. It was attended by 300 to 400 people and there was a great deal of enthusiasm. There is huge potential. We are determined to do everything we can to ensure that we have a strong UK supply industry. This is very important and the Government are by no means complacent.

Coroners and Justice Bill

Bill Main Page
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	7th Report from the Delegated Powers Committee
	8th Report from the Joint Committee on Human Rights 
	16th Report from the Joint Committee on Human Rights

Committee (8th Day)

Schedule 13 : The Sentencing Council for England and Wales
	Amendment 187AA
	 Moved by Lord Bach
	187AA: Schedule 13, page 149, line 20, leave out "the following members"

Lord Bach: I turn now to the amendments that relate to the membership of the sentencing council as set out in Schedule 13 to the Bill. There are five government amendments that I wish to speak to briefly, and I will do my best to respond to the other amendments in this group later in the debate.
	The firstgovernment amendment, Amendment 187BA, provides that the deputy chair of the council should be appointed from the judicial members. The proposals in the Bill make clear that the chair of the council should be a member of the judiciary. This is simply to ensure that all levels of the judiciary can have confidence that the guidelines are created and issued with the endorsement of experienced judicial members. The one specific role of the deputy is to chair the council in the absence of the chairing member. On reflection, the Government consider that this function should also fall to a judicial member to ensure full confidence by the judiciary in the work of the council.
	Amendment 187BB introduces greater flexibility in the appointment of the judicial members. The amendment removes the need for a set number of judicial members at each level of the judiciary and replaces it with a less restrictive requirement that there should be representation from each of the main levels of the judiciary. This amendment means that it is open to the Lord Chief Justice, in appointing the eight judicial members, to decide what the appropriate number for each level of the judiciary should be, subject to a requirement that there be at least one magistrate, one district judge and one circuit judge.
	The last substantive government amendment, Amendment 188AA, creates a new post, that of president of the sentencing council. The president of the sentencing council will be, ex officio, theLord Chief Justice. The president is not a member of the council and does not chair the council. The Gage working group made clear that it considered that role too demanding on the time of the Lord Chief Justice. The Government recognise, however, that the Lord Chief Justice as the head of the judiciary in England and Wales and president of the Court of Appeal Criminal Division should be associated in some way with a body that produces guidance to all levels of the judiciary. This new role of president allows the Lord Chief Justice to be associated with the council and to attend and speak at the council, but does not require him to be involved in the day-to-day running of the council. The nature of this amendment has necessitated some discussion with the Lord Chief Justice, the noble and learned Lord, Lord Judge. While the policy aspects of legislative proposals are for Parliament to decide, the Lord Chief Justice has confirmed that he ought to undertake this role. Amendments 187AA and 188AB are consequential upon the main amendments. I beg to move.

Lord Henley: I shall speak to Amendments 187AB and 187BC. Following on from the Minister's amendments, they are probing amendments relating to the composition of the Sentencing Council for England and Wales as set out in Schedule 13. I understand that there are other amendments in the group in the names of the noble Lord, Lord Dholakia, and the noble Baroness, Lady Linklater, to which we shall come later.
	As I said, ours are purely probing amendments. The first is consequential on the second and suggests that four rather than two lay justices should sit on the council, therefore boosting the total number of judicial numbers to 10 compared with six non-judicial members. We have tabled these amendments after listening, with some sympathy, to representations from the Magistrates' Association. It pointed out that as 95 per cent of all criminal matters appear in magistrates' courts, inevitably any new sentencing guidelines will have the most widespread effect in those courts. The Magistrates' Association has thus suggested, perhaps not unreasonably, that its representation should be boosted to recognise the special responsibility it will have in setting out any new guidelines. An added benefit would be to increase the majority of judicial members, who, after all, will be the people with the most direct experience of applying advice on sentencing.
	It is possible that the Government have arrived at the perfect combination—it is possible that they have not; we do not know—and have put careful thought into selecting the appropriate proportion of judicial and non-judicial members of the council, but I hope that our amendments will at least provide an opportunity for the Government to explain the reasoning behind their numbering and the proportions that are before us.

Lord Dholakia: My Amendment 188 is grouped with a number of others on the Marshalled List. The Minister will recall that when I spoke during Second Reading he welcomed our contribution on matters relating to the sentencing council, and I hope that he will look favourably at this modest amendment and respond positively.
	The Sentencing Council for England and Wales, which the Bill establishes, will have eight judicial members and six lay members. Paragraph 4 of Schedule 13 sets out a number of areas in which the lay members will have experience. These include: criminal defence, criminal prosecution, policing, sentencing policy and the administration of justice, the promotion of the welfare of victims of crime, academic study or research relating to criminal law or criminology and the use of statistics. So far, so good, and we certainly welcome this. It is a logical list of areas in which members of the sentencing council might be expected to have expertise.
	However, there is one surprising omission: namely, the list does not include any mention of experience in the rehabilitation of offenders. I have repeatedly raised this issue in your Lordships' Chamber. It is a very strange omission in view of the requirements in Clause 106(11)(d) that the sentencing council should have regard, among other things, to the,
	"effectiveness of different sentences in preventing re-offending".
	It is true that an academic criminologist could contribute knowledge to the sentencing council on this point, but it would surely be more helpful for the council to have input from a member or members with practical experience of preventing re-offending by rehabilitating offenders.
	As to the other areas of expertise listed in the schedule, the implication is that lay members of the sentencing council will have had practical experience, not just academic knowledge, of policing, criminal defence, prosecution and the welfare of victims. The argument for the relevance of experience is at least equally strong in the re-education of offenders, particularly as it impacts on the likelihood of reoffending, which is such an important consideration for the welfare of society.
	This is a modest amendment, and I am sure the Minister will look positively on the inclusion of the rehabilitation of offenders as part of the membership of this council.

Baroness Linklater of Butterstone: I rise to follow my noble friend Lord Dholakia and also make some suggestions on the composition of the sentencing council. Some of these suggestions may be modest but the membership of the council will to a large extent determine not only what sort of council it will be but also whether the purposes of the council, which we discussed earlier on sentencing, are likely to be fully realised.
	We fully support the Government's recommendations for the Lord Chief Justice to have a sort of hands-off role as president. It seems right and proper for the head of the judiciary to be in this position without being expected to be fully involved at all times. He will be a presence to be called on if it anyone ever judges it necessary. Yet we also support a balance between judicial and non-judicial members.
	Sentencing councils in other parts of the world have a range of ways of being constituted, including those which are entirely non-judicial. The voices of non-judicial members who are clearly extremely expert and well informed in their particular fields are equally important in developing the sort of guidance sentencers should have. Their knowledge and direct contact with what is going on in the community and the wider fields of criminal justice will be essential in forming the sort of guidance that is likely to lead to effective sentencing that reduces reoffending.
	I must declare that I am not a lawyer in any form. My experience as a sentencer was a few years as a magistrate in the Thames court in the 1980s and a further nine years in Scotland as a children's panel member until I came to your Lordships' House. Having worked in various fields within criminal justice, I believe that those skills and experiences relating to the criminal justice world are extremely important in informing the guidance that sentencers need.
	We have moved a long way from the exclusivity of sentencers and the monopoly of wisdom on the subject. Admittedly, it may feel uncomfortable to some of them to be consulting with other such non-experts. I well remember in the mid-80s when I arranged for a distinguished judge, Peter Pain—some noble Lords presents may remember him—to give a public lecture in the central area of Winchester Crown Court on sentencing. This caused a real frisson among some of his colleagues because in those days judges did not do things like coming out and talking to the great British public so publicly. Now it is relatively commonplace. For example, early on in his tenure as Lord Chief Justice, the noble Lord, Lord Phillips of Worth Matravers, gave a significant lecture at Oxford University on the importance of alternatives to custody and the relative pointlessness of short custodies—one, I regret, that was not organised by myself. It was memorable both symbolically and in what he had to say.
	As sentencers move out into the wider world—when they can, busy men and women that they are—they are advised not only within their courts but from outside. We hope that, for example, the problem-solving courts will become a model for the future when judges are involved there and then when decisions on a particular judgment are put in place on the spot. Additionally, increasing work is being done to divert people in trouble away from the courts at all, particularly the most vulnerable, such as women, children and the mentally ill, because it is recognised that it is outwith court that their offending, and their needs underpinning their offending, will be better met, for the public to be freed from their reoffending. People who work at that interface and beyond, with other particular skill sets, have voices that must be heard within the council and in equal measure.
	For that reason, I warmly support my noble friend's amendment for the inclusion of someone with experience in the rehabilitation of offenders, which is not merely theoretical but practical. There is no substitute for first-hand knowledge of the realities and their relevance and usefulness to particular situations. Of course, the reality sometimes does not tally with what the theory might initially have suggested.
	It is extremely important that someone with experience of children and young people from the youth justice world is included. We have a terrible record in this country on how we deal with children and young people. It is a source of continuing shame that we, alone in the rest of Europe and many other parts of the world, actually lock up children as young as 12 in that part of the prison estate called secure training centres. Most of these children have a range of the most desperate situations and problems and are the most vulnerable in society; they also commit some shocking offences, but it is vital that their needs are met, first and foremost, as in Scotland through the children's panels, rather than through the punitive ethos of the STCs, whose effectiveness with regard to reoffending and public safety is the worst in the whole estate.
	I sincerely hope that no one in this House does not agree that how we deal with children, starting with our own, is simply not the same as it is for adults. In the world of offending, it needs real expertise and understanding, which goes far beyond those of us uninvolved in that world. We currently have more than 6,000 children and young people in prison, including the YOIs, whose offending may on occasions be awful, but whose circumstances are equally and desperately awful. I like to think that, with someone with the right knowledge and expertise on this council, we might have a chance to get things a little more right than we do at the moment.
	Lastly, my other amendment in this group may seem inappropriate to some, but it contains a serious suggestion, and I hope and expect that we will get some serious discussion on it from the Government. I suggest that a representative of the media should also be included in the non-judicial part of the council. The role of the media in the public perception of law and order, the state of our criminal justice system and the understanding of the work and effectiveness, or otherwise, of our judiciary, is a huge topic, which has consumed endless man and woman hours of discussion and miles of column inches—too much for this part of our debate to really do justice to today, if noble Lords will excuse the pun.
	It is a given that neither people in the media nor the public at large have much confidence in our criminal justice system, and even less understanding, yet it is the one that informs the other more than any other means of communication. Confidence is rooted in understanding, which can only grow with knowledge. At the moment, the principal source of knowledge that most people have is through the press, radio and TV. I illustrate that with headlines such as "Soft lives and crimes of the lenient judges" in the Sunday Times, "Shocking figures show judges are jailing fewer criminals" in the Daily Mail, or "Top cop gunning for 'soft' judges" in the Sun. Is it any wonder that there is not much informed confidence in what is happening in our courts? Perhaps I should also declare an interest as the wife of a journalist so that I can vouch for the fact that many journalists, including those on the Sunday Times, for which my husband worked for many years, are responsible and well informed people. Many in the Chamber may say, "Some of my best friends are journalists".
	Many studies have shown that the public's perception of crime is that it is rising, so who, for example, would believe that levels of knife crime across the country have remained stable? They show the prevalence of the belief that sentences are too lenient, while at the same time substantially underestimating the proportion of convicted offenders who are sentenced to prison. Indeed, research on attitudes has shown that when the public are given the facts on specific cases with a range of sentencing options, including custody and alternatives, they invariably favour the more lenient ones. Politicians and policy-makers, who also read the Daily Mail as well as the Sunday Times, remain convinced that what the public require of them is to be tough. The current Lord Chancellor has declared himself proud of the fact that this Administration have increased the number of people sent to prison. He hopes that that will act as reassurance and help keep his seat, but does not go on to show how ineffective this is in terms of how many will then go on to reoffend, at what cost, and how much safer we actually are.
	I suggest that one media person on the council will not change all that overnight, but could make a seriously needed start in shifting some of these perceptions. It would also offer the opportunity of developing a greater openness and trust between the media and sentencers that could help with the community education role of the council, which I will come to when we discuss Clause 115.
	I believe that the amendment offers the much needed possibility for change, and I hope the Government will take it seriously.

Lord Borrie: I particularly comment—to a large degree, favourably—on the amendments in the group proposed by the Liberal Democrat Members. It seems to me that while making particular points relating to their amendment, both are very keen on the notion that there should be a combination of judicial and non-judicial members with various kinds of experience on the Sentencing Council. The range of experience on the Sentencing Council is of great importance in adding value to the experience of the trial judge whose final responsibility is to pronounce sentence—subject, that is, to appeal. Like the Liberal Democrat Members, I very strongly agree with the broad thrust of the Government's proposals that the council should be composed of a mix of judicial and non-judicial members.
	The noble Lord, Lord Dholakia, particularly wanted to add somebody with experience in the rehabilitation of offenders to the range of non-judicial members required in paragraph (4) of Schedule 4. Many years ago I was a member of the Parole Board for England and Wales. I remember distinctly one group of people who were always represented and of great value. They came from the Probation Service. They are specifically the people whom the noble Lord, Lord Dholakia, will have in mind as being particularly experienced with the rehabilitation of offenders. I would welcome that.
	I am not quite so sure about the other amendment, and I think that the noble Baroness, Lady Linklater, recognised that the media may cause difficulties. My main point in relation to youth offending and the media—which the noble Baroness emphasised—is that there are only to be six non-judicial members; the amendments do not seek to change that. Seven different levels of experience are already specifically mentioned in the schedule and we might have eight, nine or 10. There is nothing necessarily wrong with that because the choices can be made from among those. However, if I were to give a preference of adding or not adding, I would add, for the reasons I have mentioned, the proposals of the noble Lord, Lord Dholakia, but leave aside those recommended by the noble Baroness.

Lord Woolf: I also want to say a few words in support of what has been suggested by the distinguished Liberal Democrat Peers on this matter. I was a Lord Chief Justice who, unfortunately, had the burden of chairing the former Sentencing Guidelines Council. I had great hopes for it and thought that it was one of the most positive things that had happened recently in the sentencing area. Equally, I accept that for the Lord Chief Justice to be a regular member and chair of the Sentencing Guidelines Council is not desirable. It takes up far too much of his time. I can well understand the amendments proposed by the noble Lord, Lord Bach, in that respect.
	We found that one of most difficult tasks that the Sentencing Guidelines Council had was to ensure that when the guidelines were issued, they were not immediately rubbished by the media. I can well remember the times that I tried to explain to the media that these guidelines were very sensible and were the product of a great deal of research and very hard work by the council, yet they were given a very rough reception. That damaged the ability of the guidelines to achieve their objective. Therefore, having someone who understood the workings of the media could be of value to the council. I do not say that you have to have someone with that experience but I certainly see nothing wrong with it being a factor that makes someone eligible to be a member of the council.
	The other two suggestions speak for themselves and my taking up time encouraging their inclusion is not needed.

The Earl of Listowel: Briefly, I support and second what the noble Baroness said about the treatment of, and highly punitive approach to, children in the criminal justice system in this country. I commend the Government for the steps that they have taken to try to improve the criminal justice system in the way that it treats children and their endeavours to keep children out of the criminal justice system through Care Matters: Time for Change and Every Child Matters.
	However, we start from an extraordinarily low base. UNICEF has identified us as the worst performing developed country in terms of the welfare of children. The Church of England's good childhood inquiry again identified how troubled many of our children are, particularly in this country, where there are very high levels of family breakdown. So often we are punishing our children because of their family backgrounds; because their parents are alcohol-dependent or drug-dependent; because they are bereaved and have lost a parent; because their parents have broken up; or because they belong to a generation-after-generation dysfunctional family.
	That is not to say that, for instance, those under 14 should not be treated firmly and made responsible for their actions, but we should take a more welfare-based approach to their needs. Most other countries have a minimum age of criminal responsibility above the age of 14. I am very concerned that many of these children, in particularly those under the age of 14, believe that it is their responsibility when their parents break up; when they feel unloved; when they see their parents fighting with one another. Working with children, I am so familiar with this. The child believes, "It is my fault that my family is not working". That is the nature of being a child: one imagines that the world revolves around one and that one is responsible for these things. By branding them as criminals at the age of 11 or 12, rather than choosing to use a welfare-centric approach, one is reinforcing the feeling that they are a criminal, guilty as charged and responsible for how their family does not function properly.
	I strongly second what the noble Baroness has said about the overpunitive nature of our society. This is well reflected in the international surveys such as that done by UNICEF. If we just look at the care system in this country, which we all recognise has failed our most vulnerable children, and look in the mirror, we have to see that unfortunately, historically, we have not treated our vulnerable children with support and understanding but with a lack of understanding and an overpunitive approach.

Baroness Butler-Sloss: For the reasons that have already been given, I particularly support the idea that somebody with experience of youth offending should be on the Sentencing Council. I declare an interest as patron of a secure unit, which does very good work and which many of the young people, boys and girls, do not want to leave. It is the only secure place that they have had in their entire lives. It is important that that aspect of sentencing should be in the forefront in the minds of the members of the sentencing council. I very much support it.

Lord Thomas of Gresford: I follow what the noble Lord, Lord Borrie, said. He pointed out that, in the selection of people eligible for appointment as non-judicial members, not all the members from those disciplines have to be represented. It strikes me that people who have experience in the use of statistics, or are concerned with academic study or research relating to criminal law or criminology, are the sort of people who could give evidence to the Sentencing Council and help it in its task. I would have thought that that was much less significant in the formation of policy, providing that they were there as advisers, than having people with experience of rehabilitation of offenders, youth offending and the media. It would be highly desirable to try to tie in the media to what the Sentencing Council is doing, and to try to end the desperate division that currently exists between the media's perception of what happens in court and what actually happens.

Lord Bach: Amendments 187AB and 187BC in the name of the noble Lord, Lord Henley, refer to the judicial membership of the council and suggest that we should add two more magistrates to the membership, which would increase the judicial membership from eight to 10 members and the overall membership from 14 to 16. The noble Lord would not have had the benefit of seeing the government amendments to which I have spoken today, which were tabled at approximately the same time as his. They will remove the requirements for a set number of members at each level of the judiciary while ensuring that there is at least one magistrate, one district judge and one circuit judge.
	Of course, under our amendments it is open to the Lord Chief Justice to nominate the judicial members in the balance of numbers that he thinks is appropriate for the council. In this way, the overall membership of the council remains at 14 and the balance between the judicial and non-judicial membership—8:6—remains the same, with a small judicial majority.
	The Government are aware of the important role that lay magistrates play in our criminal justice system. Of course magistrates should be represented on the council. Under our amendments, there must be at least one magistrate, with an option open to the Lord Chief Justice to appoint more. We believe that conferring the discretion on the Lord Chief Justice is a better approach, on balance, than prescribing a set number of magistrates and judges at each level of the judiciary to sit on the council.
	Before I turn to the other amendments, I thank all noble Lords for their general support for the approach that we have adopted in this part of the Bill regarding the make-up of the council. Not least, I thank the noble and learned Lord, Lord Woolf, with his experience in this field for what he had to say about the role of the Lord Chief Justice in the sentencing council.
	What I am going to say is similar to what my noble friend Lord Borrie suggested a few minutes ago. We accept Amendment 188, tabled by the noble Lord, Lord Dholakia, which seeks to add to the skills that the Justice Secretary considers in appointing non-judicial members of the council experience of the rehabilitation of offenders. The importance of placing emphasis on the rehabilitation of offenders has been raised on both sides of the Committee, not least by the noble Baroness, Lady Linklater, in our debates two days ago. The Government recognise the importance of rehabilitation and reducing reoffending and agree that skills in that field should be considered in the appointment of non-judicial members of the council. So we welcome and support Amendment 188.
	We are not unsympathetic to the other amendments, but we do not think that the case is really made in either of the two fields that the noble Baroness refers to. Let me try briefly to explain why. Amendment 188A would add to the skills non-judicial members' experience of the media. While I recognise that it is important for a body such as the council to communicate well with the public and the media, we do not think it necessary to include a representative of the media among the non-judicial members of the council. There is a need for public debate on sentencing and how sentences are reported, but we are not persuaded that a media representative on the council is the way to address this. First, the council itself will need specialist media staff to deal with media interest in this field. Secondly, many of the non-judicial members in their own right, by virtue of their current positions, will have considerable media experience. So we do not feel it necessary to put that in the Bill.
	As far as youth offending is concerned, no one doubts the importance of dealing with young offenders, but the list of skills of non-judicial members, as my noble friend indicated, already includes experience of youth offending. I will give two examples. The member with experience of policing will surely have experience of youth offending. Also, I would expect the member with experience of sentencing policy and the administration of justice to have experience of sentencing youths. While recognising the good intent behind the amendment, we do not think that it is necessary, given the range and depth of experience that we would expect from the non-judicial members of the council. We are happy to accept Amendment 188 but I ask other noble Lords not to press their amendments.

Baroness Linklater of Butterstone: The other noble Lords are the noble Lord, Lord Henley, and I. Would the noble Lord, Lord Henley, like to go first?

Lord Henley: I do not have my name down to Amendment 188, which is in the name of the noble Lord, Lord Dholakia. That is the amendment that the Minister said that he was happy to accept.

Lord Bach: It is. When we come to it in the list, we will certainly vote in favour of it.

Lord Henley: I was not expecting the noble Lord to accept my amendments, which, as I stated, were probing amendments to ask the Government to explain their rationale, which they have done. They have also set out the changes that they want to make in their own Amendment 187BB.

Baroness Linklater of Butterstone: It is with a heavy heart that I say that I did not necessarily expect the Government to accept my amendments, but I wish that they had ears to hear. The fact that my amendment is supported by, of all people, the noble and learned Baroness, Lady Butler-Sloss, should not be ignored by the Government. Moreover, the support of the former Lord Chief Justice, the noble and learned Lord, Lord Woolf, for the concept of media expertise is also worth a second thought. I shall consider what the Government have said but I should add that experience of policing does not give you insights into and knowledge of the needs of children and their welfare that I have discussed. However, as I say, I shall consider this further and possibly come back to it.
	Amendment 187AA agreed.
	Amendment 187AB not moved.
	Amendment 187B had been withdrawn from the Marshalled List.
	Amendment 187BA
	 Moved by Lord Bach
	187BA: Schedule 13, page 149, line 27, leave out from "appoint" to end of line 33 and insert—
	"(a) a judicial member to chair the Council ("the chairing member"), and
	(b) another judicial member to chair the Council in the absence of the chairing member."
	Amendment 187BA agreed.
	Amendment 187BB
	 Moved by Lord Bach
	187BB: Schedule 13, page 149, line 35, leave out sub-paragraphs (1) and (2) and insert—
	"(1) A person is eligible for appointment as a judicial member if the person is—
	(a) a judge of the Court of Appeal,
	(b) a puisne judge of the High Court,
	(c) a Circuit judge,
	(d) a District Judge (Magistrates' Courts), or
	(e) a lay justice.
	(2) The judicial members must include at least one Circuit judge, one District Judge (Magistrates' Courts) and one lay justice."

Lord Colwyn: If Amendment 187BB is agreed to, I will be unable to call Amendment 187BC owing to pre-emption.
	Amendment 187BB agreed.
	Amendment 187C not moved.
	Amendment 188
	 Moved by Lord Dholakia
	188: Schedule 13, page 150, line 20, at end insert—
	"( ) the rehabilitation of offenders"
	Amendment 188 agreed.
	Amendments 188A and 188AZA not moved.
	Amendments 188AA and 188AB
	 Moved by Lord Bach
	188AA: Schedule 13, page 150, line 23, at end insert—
	"President of the Council
	(1) The Lord Chief Justice is to have the title of President of the Sentencing Council for England and Wales.
	(2) The President is not a member of the Council."
	188AB: Schedule 13, page 151, line 4, leave out "2(1) or (2)" and insert "2"
	Amendments 188AA and 188AB agreed.
	Schedule 13, as amended, agreed.
	Clause 105 agreed.
	Clause 106 : Sentencing guidelines
	Amendments 188B and 188C not moved.
	Amendment 188CA
	 Moved by Lord Henley
	188CA: Clause 106, page 65, line 20, leave out paragraph (b)

Lord Henley: In moving Amendment 188CA, I wish to speak also to Amendment 188CC. I understand that we will also be debating government Amendment 188CB, and Amendments 188D and 191ZC in the name of the noble Baroness, Lady Linklater.
	We are now on Clause 106, which is headed "Sentencing guidelines". These amendments deal with subsection (11) and the matters to which the sentencing council must have regard in exercising its functions. My two amendments seek to delete two paragraphs from the subsection. The noble Baroness seeks to delete one of those paragraphs and to insert two new paragraphs in its place. The Government are adding a further paragraph.
	We believe that these measures are important and raise matters of constitutional propriety. As the Committee will be aware, Clause 106 sets out what sentencing guidelines the sentencing council must prepare for courts to have regard to. Later, we shall debate amendments in the names of the noble and learned Lord, Lord Lloyd, and the noble Earl, Lord Listowel, which seek to clarify what the courts must do. However, we must first consider what the sentencing council does. It will draw up guidelines for sentencing which—even if we dispute that the courts must follow them and say instead that they should have regard to them—will have a real impact on decisions made by judges and magistrates when handing down sentences. It is crucial, therefore, that the guidelines are drawn up in the interests of justice and not used as a back door for the Government to interfere with the discretion of the judiciary. That is why some of the provisions in Clause 106 have given us cause for concern.
	Subsection (11) sets out, as I said, the matters to which the council must have regard when setting sentencing guidelines. Paragraph (b), which is the first one that we wish to delete and would be removed by Amendment 188CA, says that the council must have regard to,
	"the need to promote consistency in sentencing".
	At first glance, that seems entirely unobjectionable. It is a frequent complaint that sentences appear to make little sense or that there is wide disparity in the sentences handed down by different courts in different parts of the country as punishment for the same crime. However, a closer analysis would tell us what we already know: every crime is different; it involves different defendants, different victims, different motives and so on. It is to respond to those unavoidable differences that we rightly allow—indeed, demand—that the judiciary be flexible and exercise its discretion when sentencing. The same should apply to the council. While it may be acceptable for the council to set parameters within which judges can exercise their discretion, we would be entirely opposed to any attempt to try to straitjacket it by setting overly restrictive guidelines in a misguided attempt to achieve the impossible—that is, uniform sentencing for a kaleidoscope of different circumstances. We need the Government to show that they are alert to the risk of interfering with judicial independence, however indirectly it might appear to be happening.
	The second amendment that I have tabled—Amendment 188CC—would remove paragraph (d), which the noble Baroness will also seek to remove but then reinsert in a slightly different manner in the form of two new paragraphs. We believe that the provision is an unacceptable attempt to shove problems that are properly the province of the Executive and the legislature into the field of the judiciary. Working out how much money is available is obviously a job for the Government, for which they need to seek the approval of Parliament. Money matters should be debated and decided in another place principally and, to a lesser extent, by us here. To put pressure on judges to change their sentences because the Government have run out of money, as we understand they are about to do, is not something that we could support.
	The report produced by Lord Justice Gage considered whether a duty should be placed on the Sentencing Guidelines Council to have regard to Parliament's intentions on capacity, alongside the other matters to which it must have regard. Such a duty would oblige the council to have regard to this new factor alongside the others to which it must already have regard. I understand that the working group was divided as to the advantages and disadvantages of this proposal, but a majority was against. The report stated that those in the in the working group,
	"who do not favour imposing this duty on the SGC believe that to do so would inevitably lead the SGC to consider matters of policy relating to resources, which are the province of Parliament. For instance, in the event that supply and demand appeared in danger of being out of balance, the SGC might have to consider ways in which the guidelines could be drawn up to take this into account ... They believe that leaving Government and Parliament to choose how to address this imbalance better fits the appropriate relationship between Government, Parliament, the SGC and the judiciary".
	The majority of the working group believed that the disadvantages of placing a duty on the SGC to have regard to resources outweighed the advantages. Accordingly, in its view, no such duty should be placed on the SGC. The report concludes in paragraph 9.16 that it would be inappropriate to place such a duty on the SGC and makes no such recommendation. We endorse that view. I beg to move.

Baroness Linklater of Butterstone: If I may respond, I know we have a secondary rewriting of this amendment, but I thought I might add something to this discussion. The Minister says that he is in favour of consistency, but in reading the amendment, he will understand what I mean when I say that it is a lawyers' amendment and misses the point about the value and importance of a framework such as the council would be expected to lay down.
	We believe that consistency is important even within the parameters of judicial discretion. In 2006, a total of 70,000 prisoners were sentenced to immediate custody for 12 months or less. In magistrates' courts, the average sentence length for immediate custody was 2.5 months in 2007. This current overuse of custody with short sentences itself represents an inconsistency of practice in relation to government policy; namely, that the use of custody should be a last resort only for the most dangerous, violent and prolific offenders. It is also at odds with practice across most of Europe. It is inconsistent with the aim of effectiveness and with the goal of preventing reoffending, since we also know that almost half of all offenders will reoffend.
	Short sentences, of all sentences, are recognised to be almost completely ineffective. The noble and learned Lord, Lord Phillips, when he was Lord Chief Justice, was particularly eloquent on the wastefulness, in every sense, of short sentences. The level of custodial use, by comparison with so many other countries, would indicate that, as a generality, we are getting it wrong—we are, indeed, being very inconsistent. These inconsistencies are then compounded by the range of custody rates for similar offences across England and Wales, as published by the Ministry of Justice in 2006. These range from 6 to 16 per cent in magistrates' courts and from 45 to 68 per cent in the Crown Courts. The variations were not well explained by differences in the kinds of cases being sentenced.
	Sentencing differentials for children, in the data from the Youth Justice Board in 2007, also differed significantly between roughly comparable areas, reflecting differences in attitudes by sentencers. These ranged from Liverpool at the top end, with 11.8 per cent of all disposals being for custody, and Newcastle at the bottom, with 2.1 per cent of all disposals, with Birmingham being roughly in the middle with 8 per cent. Clearly, local conditions have a part to pay, but these are children's lives that are at issue and these levels of inconsistency are hard to justify. We must not forget that these inconsistencies, coupled with the negative perceptions of disparities, have fed the damaging lack of public confidence we have been considering and argue for a greater alignment of guidance and practice.

Lord Woolf: I apologise for rising again, but I think that the importance of what the Sentencing Guidelines Council will be doing means that it is worth while taking time and looking carefully at what message will be given as a result of changing what appears in subsection (11). I urge the Government not to amend either paragraph (b) or (d). In saying that, I urge that consistency is one of the most important aims and objectives of sentencing. Nothing can be more unjust than to have two persons who commit an offence in circumstances which are indistinguishable, where the backgrounds are indistinguishable, but they get different sentences. If you go to the Court of Appeal Criminal Division on any day of the week, I would think that your chances of hearing sentences being adjusted by that court to achieve consistency are very high.
	As to the cost of different sentences and their relative effectiveness in preventing reoffending, surely those are very material considerations. I have not had the advantage of reading carefully what the committee mentioned by the noble Lord, Lord Henley, was referring to. I could understand the passage that he quoted if it dealt with the question of whether the resources available to the court should be taken into account. I understand an argument that says that question of the resources that should be available is a matter for Parliament, but I do not understand why it should necessarily apply to paragraph (d).
	Effectiveness in sentencing is surely what we are trying to achieve. If there is a possibility of a less expensive sentence achieving exactly the same, or something more praiseworthy, as one which is more expensive, it does not seem rational—I say that respectfully—to impose a more expensive sentence in that situation. I have in mind, in particular, non-custodial forms of sentence, as against custodial forms.
	I hope it is now generally accepted that a short sentence of imprisonment is unconstructive and a very bad use of resources. On the other hand, I should have thought that it was general policy on the part of sentencers that where you can achieve what is desired by a non-custodial sentence, then that is what you should do, if you are sentencing well. I am afraid that if we remove subsection (11)(d), it will be taken as an indication that what I have just said is not the appropriate approach towards sentencing. I respectfully submit that that would be an error.

Lord Pannick: I support the observations of the noble and learned Lord, Lord Woolf, and urge the Government to resist the suggestion that subsection (11)(b) or (d) should be removed. In relation to subsection (11)(b) and the need for the sentencing council,
	"to have regard to ... the need to promote consistency",
	I do not understand the promotion of consistency to be the enemy of flexibility if, and in so far as, flexibility is appropriate in the circumstances of individual cases. Surely the promotion of consistency is an important objective for the sentencing council, because it needs to ensure that the sentences are clear and that all available options are there for the sentencer to ensure that the circumstances of the individual case can be met and that arbitrary distinctions are therefore avoided.
	As to paragraph (d), the relevance of the cost of different sentencing and the relative effectiveness in preventing reoffending are surely core objectives for the sentencing council. It must not be required to conduct an academic exercise. It is absolutely vital that it has regard to the real world and to the real impact of the sentencing options that it is considering.

Lord Bach: This group of amendments focuses on the matters which the sentencing council must have regard to when exercising its functions in relation to the preparation of guidelines. Government Amendment 188CB seeks to recognise the importance of the impact of sentencing on victims of crime. During the Second Reading debate, noble Lords on all sides of the House urged the Government to take into account the impact that sentencing has on the victims of crime. That is an important issue and we believe that our amendment will add to the factors to which the council must have regard when considering guidelines a need to consider,
	"the impact of sentencing decisions on victims of crime".
	This is a straightforward and effective way to ensure that the council has regard to that matter.
	I am very grateful to both the noble and learned Lord, Lord Woolf, and the noble Lord, Lord Pannick, for their support of the Government's rejection of Amendments 188CA and 188CC in the name of the noble Lord, Lord Henley. I do not think he is entirely surprised by my response. They would remove the duty on the council to have regard to the need, when drawing up guidelines, to promote consistency in sentencing and the need to consider the cost of different sentences and their relative effectiveness in preventing reoffending.
	Both of those factors are well understood by the current Sentencing Guidelines Council. Both appear in the exact same wording in Section 170 of the Criminal Justice Act 2003 under which every guideline created by the current Sentencing Guidelines Council has been considered. The requirement to consider these factors has not, to our knowledge, caused the Sentencing Guidelines Council any particular difficulty. I argue that the concepts are well understood. I go further and say that for the new sentencing council not to take those factors into account would be a severe backward step in the development of sentencing guidelines. As regards consistency, I would ask whether guidelines which do not promote consistency, and in that way justice, could be considered as guidelines at all. I have no hesitation in saying that we invite the noble Lord, Lord Henley, to withdraw his amendment.
	Amendment 188D, in the name of the noble Baroness, Lady Linklater, would split cost and relative effectiveness into two separate factors to be considered. We recognise the importance of assessing the cost effectiveness of sentencing disposals. We are not talking here about the cost of individual sentences in individual cases. The use of the phrase,
	"the cost of different sentences and their relative effectiveness",
	is one which is understood by the current Sentencing Guidelines Council and the same formulation appears in Section 170 of the Criminal Justice Act 2003.
	The noble Baroness's Amendment 191ZC also splits cost and effectiveness of sentences into two factors of which the council must promote awareness. Splitting the phrase into two changes the meaning in a way which, we believe, could lead to the council being required to consider inappropriate factors such as the availability of resources. This amendment would also remove—presumably this is not the intention—the current paragraph (c) and the encouragement of the council to promote public awareness of the operation and effect of guidelines. We agree with the noble and learned Lord, Lord Woolf, and the noble Lord, Lord Pannick, who say that as far as these matters are concerned, the Government are right in Clause 106(11).

Lord Henley: It seems fairly obvious that I do not have the support of the Government on these amendments, but that is not an unusual position for me to be in. It is also fairly obvious that I do not have the support of the noble and learned Lord, Lord Woolf, which seems to be somewhat more important. My noble friend has suggested that I test the opinion of the Committee but I am not sure that would be a good idea. It might be simpler if I just put up my hands and withdraw the first of the two amendments.
	I want to consider the second amendment a bit more and, having thought about it further and redrafted it, come back to it later. For the moment, the best thing for me to do is to beg leave to withdraw Amendment 188CA.
	Amendment 188CA withdrawn.
	Amendment 188CB
	 Moved by Lord Bach
	188CB: Clause 106, page 65, line 20, at end insert—
	"( ) the impact of sentencing decisions on victims of offences;"
	Amendment 188CB agreed.
	Amendment 188CC not moved.
	Amendment 188D
	 Moved by Baroness Linklater of Butterstone
	188D: Clause 106, page 65, line 22, leave out paragraph (d) and insert—
	"( ) the relative effectiveness of different sentences in preventing re-offending
	( ) the cost of different sentences"

Baroness Linklater of Butterstone: This amendment has in a sense already been spoken to by the Government but it is next in the grouping. I add a comment in support of the previous government amendment, because I want to have on the record an important implication of it. Amendment 188CB was to do with,
	"the impact of sentencing decisions on victims of offences".
	It goes without saying that as part of the sentencing guidelines the council must include the impact of sentencing decisions on the victims of offences. We have constantly restated that everything that prevents reoffending has a direct impact on the victim. The more that they and we can feel secure, the better it will be. That is principally through the use of effective and robust community sentences, as the noble and learned Lord, Lord Woolf, the distinguished former Lord Chief Justice, just said. In fact, we would favour putting subsection (11)(d) at the top of the list of the council's considerations. In particular, it seems to us that it would also open the door to the greater use of restorative justice, something which has not been mentioned in this context, which probably has the most direct impact of all for a large number of victims. It is a subject that has been widely discussed, analysed, piloted and promoted—most notably, of course, by the former chief constable of the Thames Valley Police, Sir Charles Pollard. The evidence for giving closure to victims following an offence is powerful, and the case for it generally is equally powerful.
	However, it remains to be rolled out more generally and enthusiastically by the Government. I urge the Government to accept that as part of their responsibility for the future. Of course, it would require commitment and a certain amount of expenditure on training people, and so on, but I point out that it is part of the toolkit in many areas of the country, especially some police areas, in a relatively routine way, and has been surprisingly useful in schools and communities. If that were to be the outcome of the government amendment, it would be really significant and powerful.
	I move to our amendment on effectiveness and cost. We believe that splitting the two is a small but significant amendment. Effectiveness in preventing reoffending, which we have already discussed at length, should be considered separately from cost, although one may reinforce the other. The same is true when it comes to the council promoting awareness more widely to treat the two elements of effectiveness and cost as distinct. It is helpful to consider what is meant by cost in this context. Is it simply financial or are we talking about social and human cost, and to what are they related? I certainly do not agree with the Government that it is not just the availability of resources that they should require the council to consider.
	The report of the New Economics Foundation last year, for example, considered women offenders and highlighted how the criminal justice system's focus on short-term control and narrow reoffending targets is actually costing us more in the long term. Prison costs much more than the community alternatives, which are much more likely to turn lives around. That report suggested that a body similar to NICE, which has helped to prioritise cost-effective treatment in the health service, could be applied to the criminal justice system.
	The Corston report recommended setting up small secure units so that women can be nearer to home and family, as well as a network of support and supervision centres to administer community sentences. They may cost money initially, but in the long term they are not only cost-effective financially, but far cheaper in social and human terms, when contact with children can be maintained, as well as addressing the offending behaviour. For every pound invested in these effective alternatives, it has been calculated that society benefits by £14. If reoffending were reduced by just 6 per cent, the saving to the state in one year would equal the cost of setting up the whole system. The human cost is, of course, difficult to measure, but 160,000 children lose a parent to prison each year and at a stroke they become more at risk of being sucked into the criminal justice system themselves. Some long-term investment in their mothers would pay dividends in savings to society.
	This sort of long-term view does not come naturally to politicians, I acknowledge, least of all in a recession, but we must keep these issues in the front of our minds if we are not to go on paying an increasingly unacceptable human price in the way we deliver sentences.

Baroness Butler-Sloss: I very much support restorative justice, but it seems to me that it can very well be regarded by the sentencing council within the existing wording of subsection (11)(d). If I may respectfully say so, I do not really see the point of dividing paragraph (d) in two. I shall say no more, other than to agree with the noble and learned Lord, Lord Woolf, in his approach to the point on costs.

The Earl of Listowel: I am prompted by what the noble Baroness, Lady Linklater, has said to ask the Minister whether it might be possible to include a paragraph requiring the sentencing council to consider the impact on family life. I imagine that this is not possible, but I would be interested to know how far some of the problems identified by the noble Baroness, Lady Corston, in her report have been remedied. For instance, she identified clearly that women were being given harsher sentences than men for similar offences. The report also discovered that only 8 per cent of children remained in the same home when their mothers had been removed to custody. I believe that it was 8 per cent; it was certainly under 10 per cent. It really causes such an upheaval for children when their mothers are given custodial sentences. I have two questions. First, is it possible to include a provision on the impact on families? Secondly, do courts now treat men and women equally, as they have not done in the past? I apologise for not giving notice to the Minister of those questions. I would be very glad if he would care to write to me.

Lord Bach: I thought that I had dealt with these two amendments earlier, but I clearly had not. Let me say, at the risk of repeating myself, that we agree with the noble and learned Baroness, Lady Butler-Sloss, about the advantages of keeping these five matters in subsection (11) in their current order, not least because they are understood, having been used for a number of years. That does not, of course, mean that the council should not have regard to other matters, including those raised by the noble Earl, Lord Listowel, and by the noble Baroness, Lady Linklater. We recognise the importance of assessing the cost-effectiveness of sentencing disposals. I repeat that we are not talking about the cost of sentences in individual cases.
	The problem with Amendment 191ZC, which relates to Clause 115, is that it would remove subsection (2)(c), which encourages the council to promote public awareness of the operation and effect of guidelines. I do not think that the noble Baroness would want us to do that.

The Earl of Listowel: I am grateful for the Minister's reply. Will he write to me on the last point, which is whether there has been progress, since the Corston report, on the treatment of women and men on an equal basis and on parity of sentencing? If I remember the report correctly, women were clearly being treated more harshly than men for similar offences.

Lord Bach: Of course I will write to the noble Earl.

Baroness Linklater of Butterstone: I thank noble Lords who have taken part in this short debate. When I referred back to the Government's amendment on the impact of sentencing decisions, I wanted not to change anything in the Bill but to draw out in discussion a very positive implication. I was with the Government on that. Clearly there is not a lot of support for separating effectiveness and cost. I shall think about it and in the mean time I beg leave to withdraw the amendment.
	Amendment 188D withdrawn.
	Clause 106, as amended, agreed.
	Clause 107: Sentencing ranges
	Amendment 188E
	 Moved by Lord Tunnicliffe
	188E: Clause 107, page 65, line 26, leave out subsections (1) and (2) insert—
	"(1) When exercising functions under section 106, the Council is to have regard to the desirability of sentencing guidelines which relate to a particular offence being structured in the way described in subsections (2) to (8A).
	(2) The guidelines should, if reasonably practicable given the nature of the offence, describe, by reference to one or more of the factors mentioned in subsection (3), different categories of case involving the commission of the offence which illustrate in general terms the varying degrees of seriousness with which the offence may be committed."

Lord Tunnicliffe: At Second Reading, we made it clear that the Government were willing to consider amendments, or table our own amendments, that improved and clarified these provisions. That is what these amendments, which relate to the format of sentencing guidelines, seek to do. The sentencing council provisions in this Bill sought to replicate the current practice of the Sentencing Guidelines Council in regard to the format of guidelines. In that way, the provisions reflected the fact that the current Sentencing Guidelines Council guidelines subdivide an offence guideline into levels of seriousness, so that, for example, in the guideline on robbery there are three sentencing levels based on the nature of the robbery offence.
	There has been some concern, however, that the Bill as drafted would require a set format for council guidelines. This, it has been argued, may lead to unforeseen difficulties if some less common offences do not lend themselves to this format. The Government sought to introduce flexibility in this regard in amendments tabled in the other place, but the further changes contained in Amendments 188E to 188X make the flexibility contained in Clause 107 clearer.
	This further flexibility starts with government Amendment 188E, which redrafts the first two subsections of Clause 107, emphasising that it is desirable, but not mandatory, that guidelines be formatted in the way set out in the rest of Clause 107. In this way, the amendments ensure a balance between the desirability of having guidelines that subdivide guidelines and provide starting points, because that format provides guidance to sentencers and transparency to victims and offenders, and the option for the council to opt out of this format if the nature of the offence is such that it is not reasonably practical to produce a guideline in this format.
	The Government's view is that this amendment ensures that the council will not be hampered in producing guidelines for the widest range of offences. This flexibility is also important when we come, a little later, to consider the duty on sentencers to follow guidelines. The other government amendments reflect this change to the beginning of Clause 107. For example, Amendments 188G, 188K and 188M replace the provision that the council "must format guidelines" with the less onerous "should format guidelines".
	Government Amendment 188F allows the council to refer to factors other than the offender's culpability and the harm caused in describing different categories of offending in the guidelines. The offender's level of culpability and the harm caused are currently the main factors that determine the levels of seriousness of an offence in a guideline. The Government appreciate that it may be helpful for the council's guidelines, for the purpose of illustrating the different degrees of seriousness with which an offence has been committed, to be able to refer to other factors. These other features might also amount to aggravating or mitigating circumstances, so we have tabled Amendment 188F to allow for that possibility.
	Amendments 188Q and 188X also allow greater flexibility in the format of guidelines. Amendment 188Q creates new subsection (8A), which allows for different provisions in guidelines if there are different circumstances or cases involving the offence that the guideline covers. This amendment provides more flexibility where, for example, the guideline relates to the sentencing of juveniles, where different sentencing disposals exist.
	Amendments 188S and 188V clarify that the intention of the guidelines is to produce starting points within category ranges. Having identified a starting point, sentencers will then consider the individual factors of the particular case, such as aggravating or mitigating factors or guilty pleas, in order to determine the most appropriate sentence to impose on the offender after those factors are considered.
	The Government believe that this package of amendments to Clause 107 provides the council with a range of options for producing guidelines, stressing the desirability of having subdivided ranges with starting points but allowing for other formats for different types of offence.
	Finally in this group, Amendment 188Y clarifies the provisions of Clause 110 that deal with proposals for guidelines originating from the Lord Chancellor or the Court of Appeal. Clause 110 allows the Court of Appeal, if it is considering a relevant case, to propose to the council that it frames a new guideline or revises an existing guideline. This amendment makes it clear that this power does not prevent the Court of Appeal from continuing to issue guideline judgments.
	All these amendments provide more flexibility for the council to enable it to tailor guidelines to particular offences. I beg to move.

Lord Henley: I shall make just one brief comment in welcoming these government amendments. As a general rule, when Governments delete the word "must" and replace it with "should", it is a step in the right direction. As I read these amendments, particularly subsection (2) in Amendment 188E, which states that "the guidelines should", Amendment 188G, which deletes "must" and replaces it with "should", and Amendment 188K, I can say that we on these Benches welcome these amendments.
	Amendment 188E agreed.
	Amendments 188F to 188X
	 Moved by Lord Bach
	188F: Clause 107, page 65, line 36, at end insert—
	"( ) such other factors as the Council considers to be particularly relevant to the seriousness of the offence in question."
	188G: Clause 107, page 65, line 37, leave out "must" and insert "should"
	188H: Clause 107, page 65, line 41, leave out "under" and insert "in accordance with"
	188J: Clause 107, page 65, line 42, after "sentences" insert "("the category range")"
	188K: Clause 107, page 65, line 45, leave out "must" and insert "should"
	188L: Clause 107, page 66, line 2, leave out "under" and insert "in accordance with"
	188M: Clause 107, page 66, line 5, leave out "must" and insert "should"
	188N: Clause 107, page 66, line 6, at beginning insert "(to the extent not already taken into account by categories of case described in accordance with subsection (2))"
	188P: Clause 107, page 66, line 26, leave out "under subsection (6)(c) must" and insert "in accordance with subsection (6)(c) should"
	188Q: Clause 107, page 66, line 29, at end insert—
	"(8A) The provision made in accordance with subsections (2) to (8) may be different for different circumstances or cases involving the offence."
	188R: Clause 107, page 66, line 31, leave out "under" and insert "in accordance with"
	188S: Clause 107, page 66, line 33, leave out "sentence" and insert "starting point"
	188T: Clause 107, page 66, line 34, leave out "listed in the guidelines under" and insert "mentioned in"
	188U: Clause 107, page 66, line 37, leave out "under" and insert "in accordance with"
	188V: Clause 107, page 66, line 39, leave out "sentence" and insert "starting point"
	188W: Clause 107, page 66, line 40, leave out "listed in the guidelines under" and insert "mentioned in"
	188X: Clause 107, page 66, line 43, leave out subsections (10) and (11)
	Amendments 188F to 188X agreed.
	Clause 107, as amended, agreed.
	Amendment 188XA
	 Moved by Lord Ramsbotham
	188XA: After Clause 107, insert the following new Clause—
	"Sentencing guidelines: voting
	The sentencing guidelines relating to a particular offence must specify whether the offender will be capable of voting at any parliamentary or local government election during the time he is detained in a penal institution in pursuant of his sentence."

Lord Ramsbotham: This is essentially a probing amendment related to something that has been raised in this House many times, including recently. It is now more than seven and a half years since the European Court of Human Rights found that the United Kingdom was in breach of the European convention in not allowing prisoners to vote. Those seven and a half years are in stark contrast to the speed with which, for instance, the Parliamentary Standards Bill has been rushed forward to this House and rushed through it.
	Eighteen of our fellow European countries allow all prisoners to vote and eight ban some from voting. The United Kingdom is one of only nine which automatically disenfranchise all sentenced prisoners, including Armenia, Bulgaria, Estonia and Romania. However, it is interesting that two countries with far worse human rights records than those—China and Iraq—both allow prisoners to vote.
	One thing that has held up the Government from taking the sensible line—this was also reinforced by the European court when the Government appealed against the original decision—is the idea of passing to the sentencers the responsibility of deciding who should or should not have the vote while in prison. My amendment, therefore, is designed to follow the current procedure in France and Germany, where the courts have the power to impose loss of voting rights as an additional punishment. The proposed sentencing council would be exactly the right organisation to decide what guidelines should be issued to sentencers to help them decide, on the basis of the evidence that they have heard, whether or not a particular crime committed by a particular individual should carry with it the additional sentence of removal of the right to vote.
	At present, we are in the middle of a second consultation on this issue which is purely around whether the length of sentence should be the determinate of whether or not people should have a vote. That is entirely illogical because, for example, currently a shoplifter who is sentenced to a community sentence is allowed to vote and a shoplifter who is sentenced to custody is not. The way out of this is to remove as many of the illogicalities as possible. Putting the onus on the sentencing council would remove the political concerns—many of which are determined by fear of the media—from something which the European courts have already determined we ought to do.
	The amendment is designed to suggest to the Government that they might like to consider this proposal as a sensible way out of a situation that has taken them so long to determine so that we can bring ourselves into line with the direction we have been given, possibly in time for the next general election. I beg to move.

Lord Lester of Herne Hill: I am sure that the noble Lord, Lord Ramsbotham, knows that his amendment does not have a snowball's chance in hell of being accepted. It is a probing amendment. I admire him for continuously raising this issue and I am glad to be here to support him in doing so. As he said, this matter has been raised again and again and there is little new that can be said by either the Government or ourselves. However, I should like to mention one or two matters.
	First, there is something even more important than everyone's democratic right to vote, except where there is very good reason to deprive them of their voting rights, and that is the European rule of law. I have said—this has been quoted against me by the Minister in the past—that Britain has a fine record of abiding by the judgments in Strasbourg, and so it has, but this is a disgraceful and lamentable exception which has already exercised members of the Committee of Ministers of the Council of Europe to the point where they are threatening publicity and an interim resolution at Christmas. They will be reading this debate in Strasbourg at their next meeting, just as they have looked at the past proceedings.
	The United Kingdom has an obligation under Article 41 of the convention to abide by the judgment in this case. It has another obligation under Article 13 of the convention to provide an effective remedy to everyone whose convention rights are violated. The Government are in breach of their duty under Article 41 and under Article 13. I do not expect everyone in the House to rejoice at the idea of prisoners getting anything at all, I am afraid, but there is a very good democratic reason why prisoners should be given the right to vote as the court has stipulated: that is, it makes politicians more sensitive to what is happening inside our prisons. If Ministers in the prison department understand that prisoners have a right to vote—let us say by postal vote, as they have in Ireland, Hong Kong and Cyprus—they may be more sensitive to the conditions within prisons and the needs of prisoners.
	It is wrong for prisoners to have their other civil rights taken away in addition to the deprivation of liberty except for very good cause. There is an argument for saying that those who are guilty of the most heinous crimes should have their civil rights taken away, especially on the recommendation of a court that has tried them—that is part of what is behind the amendment—and one can understand the need for a proportionate response, compatible with human rights, in that context. But to continue a blanket exclusion of any right to vote by any prisoner in custody for any crime whatever is completely unjustified. As the noble Lord said, we are in the minority in Europe in perpetuating that and, even worse, we are in breach of a clear judgment of the court. That is as bad as if it were a contempt of court in this country because Ministers of the Crown were disobeying the binding judgment of a domestic court.
	I have nothing to say in favour of the attitude that the Ministry of Justice and the Government as a whole have put forward. They are simply dragging their feet for as long as they possibly can, up to the next election, for fear of alienating the tabloid media that will attack them for being the prisoners' friend. That is completely unjustifiable and it is time that this country brought our law into conformity with the binding judgment of the European Court. For those reasons, I support what is behind the amendment.
	I hope that Her Majesty's loyal Opposition will not give a knee-jerk reaction to what is proposed. I remind them that the European convention was supported in 1949 to 1950, not by Labour but by the Conservatives. It was Winston Churchill, Harold Macmillan, Maxwell Fyfe and John Foster, the former head of my chambers, who led the campaign in the European movement. It was the Conservative Government, not the Labour Government, who accepted the first optional protocol, which has voting rights within it. So it was not the work of Labour—Labour sought to keep it out when they ratified the original convention. It was the Conservative Government who came to power in 1951 who accepted the first optional protocol.
	The Conservative Party stands for the rule of law as part of a deep conservative tradition which quite transcends any populist ideas about prisoners' rights. I very much hope that the Official Opposition will seek to persuade the Government to abide by their treaty obligation and by the court's judgment in this case.

Lord Monson: Is it not correct that in France those found guilty of serious crimes are very often officially deprived of their civil rights, which may or may not coincide totally with the time they spend in prison, and that this has been the case for a very long time?

Lord Lester of Herne Hill: That is so in some countries—I think France is probably one. That is a case where the particular individual is being punished not only by the loss of liberty but by the loss of other civil rights including the right to vote because the trial judge who has listened to the facts of the case has decided that, in the particular circumstances, it is right to add that to the punishment. That I can understand. It is in a sense the approach of the noble Lord, Lord Ramsbotham, in his amendment. He says it should be part of the sentencing guidelines. That is a proportionate response focusing on the particular individual. It is not a blanket view that no prisoner should have the right in custody to vote in any circumstances. I hope I have answered the noble Lord.

Baroness Stern: I rise in the same spirit as the noble Lord, Lord Lester. It will certainly not be the first time I have spoken to an amendment that did not have a snowball's chance in hell.
	I have always been somewhat bemused by why the Government have been so resistant to this ruling, so unprepared to see the link between participation in civic life and rehabilitation and, as the noble Lord, Lord Lester, has explained, so dismissive in this case of their international human rights obligations. The decision of the European Court was not a weird aberration made by a group of people devoid of any common sense. Six out of eight of them in the original judgment came from countries to which democracy had returned only in the past 15 years. They may have had a particular view of the importance of democratic rights. It is not so outlandish to suggest that someone who is imprisoned, for example, for a short time, should still be able to vote. Research suggests that retention of such civic rights can be in a small way conducive to future rehabilitation.
	The suggestion by my noble friend Lord Ramsbotham that such a matter be dealt with by a guideline would perhaps get the Government off the hook and enable a responsible body of people to put their minds to it and assess the strength of the Government's arguments against it. I quote from the European Court:
	"The United Kingdom Government had asserted that the voting restrictions on prisoners were designed to prevent crime and punish offenders and to enhance civil responsibility and respect for the rule of law".
	The inclusion of this matter within the work on guidelines would enable it to be considered thoughtfully, related to similar considerations about what should constitute the appropriate penalty for specific offences. It would enable the public to see that the matter had been given serious consideration over a range of cases rather than having been dealt with as a political football. I support the amendment.

Lord Pannick: I, too, support the noble Lord, Lord Ramsbotham. "Votes for felons" is no doubt not a popular slogan or campaign but it is an important one. The Minister should understand that the Government's current position is simply a national disgrace, given the importance of the democratic rights we are talking about, the clarity of the judgment of the European Court that the absolute ban is inconsistent with our international obligations and the extraordinary length of time that has now elapsed since the European Court gave its judgment. The Minister, on behalf of the Government, should understand that this is a serious stain on the record of this Government. It is about time that something was done about it. I personally hope that the noble Lord, Lord Ramsbotham, will bring his amendment back on Report. If he does, I will certainly vote for it.

Lord Henley: The House will be aware that the noble Lord, Lord Lester, and I do not always agree on a large amount of matters that come before this House. I can agree with him on one thing: the chances of this amendment getting on the statute book. He was right in saying it has no more than a snowball's chance in hell of being accepted by the Government.
	I also thank the noble Lord for his history lesson in the honourable part that my party had in seeing the European Convention on Human Rights come into effect back in the late 1940s and 1950s. I thank him for that lesson but I knew it all already. I remember being informed of all that by our late colleague Lord Renton, who also played some part in these matters.
	I admire the ingenuity of the noble Lord, Lord Ramsbotham, in bringing this amendment forward. I warned the Government of this at Second Reading. If they insist on bringing forward these massive Home Office or Ministry of Justice Bills that cover every possible subject, they will find that every other possible subject can be added to them. That is why we have had debates on assisted suicide and all sorts of other matters that were not originally in the Government's plan.
	On the amendment itself, as the noble Lord, Lord Ramsbotham, rightly pointed out, it is now seven and a half years since the European Court of Human Rights case was decided. Since then we have had two consultations from the Government. They seem to be frozen like rabbits stuck in the headlights, unable to decide what to do. It is not for me to say what we will do at this stage because we are not yet the Government. That will come in due course.
	I can give the Minister some reassurance that we on this side are unhappy with the idea of extending the franchise to offenders in prison. The Minister will be aware of what my honourable friend Dominic Grieve said on this matter:
	"Many people will question whether this is a sensible development".
	One does not need to dismiss that, as the noble Lord, Lord Lester, did, as a knee-jerk reaction to the tabloid press. Often when people say something is a knee-jerk reaction to the tabloid press they are saying they do not like what the majority of the country thinks about these matters. This is a democracy and we have a chance to make up our minds about it. To continue to quote from what my honourable friend said:
	"The principle that those who are in custody after conviction should not have the opportunity to vote is a perfectly rational one. Civic rights go with civic responsibility, but these rights have been flagrantly violated by those who have committed imprisonable offences".
	He then went on to demand that the Government allow a parliamentary debate. I appreciate we are having something of a debate now, but this must be a bigger debate in both Houses, that gives MPs the opportunity to insist on retaining our existing practice, that convicted prisoners cannot vote. Having said that, I cannot offer much support for this amendment.

Lord Lester of Herne Hill: Before the noble Lord sits down, could he explain on behalf of the Opposition whether it is their position that they will abide by binding judgments of the European Court of Human Rights in accordance with Article 14?

Lord Henley: As I made clear, my honourable friend has asked for a debate on this matter. As I understand that particular case—the noble Lord, who is much more learned in these matters than I am, will correct me—that judgment does not insist that we automatically give the vote to every prisoner. It would be possible to make some other adjustment, of the manner suggested by the noble Lord, Lord Ramsbotham. We have asked for a proper debate on this matter. That is the right way of deciding these things. A Conservative Government, when they are in power, would then respond accordingly.

Lord Elystan-Morgan: Briefly, I immensely admire the motivation of the noble Lord, Lord Ramsbotham, in raising this matter. The issue is not what the public would want or what tabloid editors would say, but whether we are going to be loyal to a determination of the European Court and to our treaty obligations. Vox populi is not vox parliamentari, and should not be so. The Government, for the basest of motives—and I accept that over 12 years they have done many splendid things—have kept this matter back. That goes for the Opposition as well.
	There is one argument, additional to that put forward by the noble Lord, Lord Lester, that we should bear in mind with regard to the rightness of the act of giving votes to persons in prison. Persons are sent to prison because they have acted in such a manner and their conduct is so intolerable that they have been placed outside the walls of society, but with the intention some day that they should come back to society as persons who have redeemed those offences. Those persons still remain citizens, and it is right and proper that they should be reminded not only that they have responsibilities as citizens but that they have rights as well. This is one way of driving that message home.

Lord Goodhart: I express my strong support for what has been said by the noble Lord, Lord Ramsbotham, and my noble friend Lord Lester, and everybody else who has spoken in this debate, with the obvious exception of the noble Lord, Lord Henley. Of course, we are not suggesting that all prisoners ought to be given the right to vote, but it seems plain that there is a strong argument that, for example, prisoners approaching the end of their sentences should be allowed to vote and consider the political issues facing him or her and the country when they become free again. Allowing them to vote in those circumstances could be part of their rehabilitation as citizens of the country. In those circumstances, I believe that there is absolutely no argument for saying that the present status quo of no prisoner ever being allowed to vote while being in prison should continue.

Lord Bach: I start by congratulating the noble Lord, Lord Ramsbotham, on his immense skill in persuading the authorities that somehow this amendment fitted into this Bill in any way whatever. I congratulate him on his ingenuity, not for the first time. Secondly, he has surprised me, as I thought that he was in favour of blanket automatic enfranchisement, but he is now saying that he now favours the sentencing court playing a major role in deciding whether or not—

Lord Ramsbotham: If the Minister had read my response to the first consultation document, he would have found this suggestion firmly written in my response.

Lord Bach: In that case, I withdraw what I was saying immediately. I was under the impression that the noble Lord was in favour of automatic enfranchisement. I presume that he is not.
	As the noble Lord has reminded us, his amendment seeks seek to repeal Section 3 of the Representation of the People Act 1983, and replace the current blanket ban on voting rights for convicted prisoners with a system by which a prisoner's right to vote is determined by the court that sentenced them. As the noble Lord has reminded the Committee, the European Court of Human Rights in the case of Hirst has ruled that the current statutory prohibition on voting by convicted prisoners was in breach of the convention rights. In response to the judgment, which was delivered in October 2005—which by my estimation is not seven years ago—the Government are undertaking a two-stage consultation on this difficult and sensitive issue. The responses to the first-stage consultation paper indicated that there was no great support for the option of allowing the sentencing court to decide on whether a prisoner retained his or her right to vote.
	The Government are not entirely opposed to the principle of allowing the sentencing court to effectively judge each case on its own merits. Indeed, the fourth of the options in the second and current consultation is to allow judges some discretion in enfranchisement. However, this approach needs to be considered very carefully.
	As to the substantive issue, let me say a few words about the Government's approach as set out in the current consultation. Our approach to the possible enfranchisement of prisoners is based on the length of custodial sentence to which a prisoner has been sentenced. The Government consider that, in general, the more serious the offence that has been committed, the less right an individual should have to retain the right to vote when sentenced to imprisonment. Tying entitlement to vote to sentence length would have the benefit of establishing a clear relationship between the seriousness of the offence, or offences, and suspension of the right to vote. Therefore, in its second-stage consultation paper, the Government have proposed four policy options to determine a prisoner's entitlement to vote, all of which are based on the length of his custodial sentence as handed down, with one partial exception.
	Under our first three options, prisoners would automatically retain the right to vote when they have been sentenced to a period of imprisonment of less than one year, less than two years and less than four years respectively. Under option 4, prisoners who have been sentenced to a period of less than two years' imprisonment would automatically retain the right to vote. In addition, prisoners who have received sentences of more than two but less than four years could apply to be entitled to vote, but only where a judge grants permission in their specific case. This last option allows some element of judicial discretion in determining a prisoner's right to vote and, in this context, the need for sentencing guidelines to ensure consistency and fairness would remain paramount. This element would apply only to prisoners sentenced to between two and four years' imprisonment.
	When the second consultation has concluded, in September this year, the Government will consider the next steps. It would be premature to introduce legislation before this second consultation has been completed, and before we have had the opportunity to give proper consideration to all the complex issues that an approach to enfranchisement based on sentence length throws up. There will be a need for a UK-wide approach to this issue, and the judiciary would need to be fully consulted, particularly where proposals are being made for judicial discretion in enfranchisement.
	I noted that the noble Lord said that this was a probing amendment. I thank him for raising it today and ask him to withdraw his amendment.

Lord Lester of Herne Hill: I am very grateful for the Minister's remarks, but could he clarify one matter about the timetable? He said that the consultation would end in September. Let us assume, hypothetically, that the next election is in May. It would be perfectly possible to use a remedial order to accomplish, as one sometimes does, full compliance with the judgment of the court without the need for primary legislation. If the Minister, having had two consultations and having consulted the judiciary, were then to lay a remedial order before both Houses, which would have to be debated and cleared by affirmative resolution, that would enable the matter to be resolved before the next general election. Would that be a matter that the Government would now consider? If they would not consider it, it would mean that it could not happen this side of a general election.

Lord Bach: The noble Lord and I have been on this subject of the remedial order before. No, we do not think that this is an appropriate issue for a remedial order; it is an appropriate issue for both Houses to decide whether and how this particular ruling of the European Court of Human Rights should be brought into force. It is not a proper issue for remedial order, in our view.

Lord Ramsbotham: I am very grateful to all those who have spoken. I must make it abundantly clear that I do not take all the credit for the amendment. The noble Lord, Lord Lester, was closely involved, as were the advisers who drew up the original amendment. There are many who feel, on both sides of this question, that the matter will cause us all some concern until resolved.
	My concern about this began some 10 years ago when the then Home Secretary, currently the Justice Minister, told me that prisoners could not vote because they had lost the moral authority to do so. I did not know that people voted by moral authority, and if moral authority was the reason I suspect that there would be many people other than prisoners who were denied the right. It struck me that everyone was on the wrong track; and we are still on the wrong track.
	I add to what my noble friend Lady Stern said. If you are encouraging prisoners to rehabilitate and enhance their respect for the rule of law while doing so, it does not set a very good example if the Government are defying the rule of law in practising rehabilitation. I have always thought, in addition to the points made by the noble Lord, Lord Lester, that if the right to vote was there, prisoners would become constituents of MPs and MPs would have to take an interest in the rehabilitation of their constituents, which would raise their interest and involvement in the whole penal system.
	Therefore, I accept entirely what the Minister says about timing at the moment. I will read very carefully what was said. I am happy to withdraw the amendment, but with the full understanding that I will seriously consider bringing the matter back on Report. I beg leave to withdraw the amendment.
	Amendment 188XA withdrawn.
	Clauses 108 and 109 agreed.
	Clause 110 : Proposals by Lord Chancellor or Court of Appeal
	Amendment 188Y
	 Moved by Lord Bach
	188Y: Clause 110, page 68, line 46, at end insert—
	"( ) This section is without prejudice to any power of the appeal court to provide guidance relating to the sentencing of offenders in a judgment of the court."
	Amendment 188Y agreed.
	Clause 110, as amended, agreed.
	Amendment 188Z not moved.
	Clause 111 : Sentencing guidelines: duty of court
	Amendment 189
	 Moved by Lord Lloyd of Berwick
	189: Clause 111, page 69, line 4, leave out "follow" and insert "have regard to"

Lord Lloyd of Berwick: The first point that I make in support of the amendment is that there is nothing new about sentencing guidelines. It has always been one of the functions of the Court of Appeal to provide guidelines wherever that has been thought desirable and necessary. However, the absence of a guideline judgment has never meant that judges were, as it were, on their own—far from it. We have always had, as any practitioner will know, Thomas on sentencing—a loose-leaf work in four massive volumes—in which the facts of all comparable cases are set out in great detail. In my view, the existence of Thomas on sentencing is by far the best way of ensuring consistency in sentencing, since it is the most complete record of all the decisions and it is always kept up to date.
	Criticism might be made that this is all very well; it is what the judges do for themselves, but it does not reflect the views of the public. That would not be so. From time to time, Parliament takes the view that the sentencing level in a particular type of offence is too low and it takes steps to correct the position. The example that I always give—I am afraid that I have given it before in this House—is causing death by dangerous driving. When I became a judge, the maximum sentence was two years; the maximum sentence is now 14 years. My view happens to be that 14 years is far too high when one compares that offence with other very serious offences, but that is neither here nor there. What matters is that, whenever Parliament has increased the maximum sentence, the judges have always followed suit. That has happened, I think, on every occasion.
	In 1998, we had the Sentencing Advisory Panel, whose purpose was to give judges independent advice as to the appropriate level of sentencing and, in 2003, as we all know, we had the Sentencing Guidelines Council. So the judges have not been wanting for outside guidance; we have always welcomed such guidance and we have always had regard to it. Now, for the first time, judges will be obliged to follow the guidelines unless the interests of justice require otherwise. That, to my mind, is a very different thing.
	Why are we being asked to change a test so soon after the existing test was approved and confirmed by Parliament in 2003? I remind the Committee of what Section 172 provides. It states:
	"Every court must ... in sentencing an offender, have regard to any guidelines which are relevant to the offender's case".
	What is wrong with that? That was the Government's view as recently as 2003 in bringing forward legislation, which was by no means noted for its liberality or, indeed, for letting judges get on with the job. That was their view then, so why has their view changed? What is the evidence that that existing test, set out so recently, is proving unsatisfactory? Or is there some other reason for making the change? I hope that the noble Lord will answer that question when he replies.
	Perhaps I may venture to suggest a possible explanation. The starting point was, I think, the review of the prison system in 2007 by the noble Lord, Lord Carter of Coles. It was difficult, the noble Lord said, to predict the number of prison places that would be required without a structured framework such as exists in the United States in Minnesota and in North Carolina. Only in that way, he thought, would it be possible to forecast the growth of the prison population.
	The noble Lord, Lord Carter, reported in December 2007. The same month, the Lord Chancellor and the Lord Chief Justice asked Lord Justice Gage to chair a working party to consider the recommendations of the noble Lord, Lord Carter. The working party unanimously rejected the noble Lord's central recommendation that we should have a structured framework such as there is in Minnesota. In paragraph 4.24, it said that it would simply not be workable in the United Kingdom. Yet by a majority the working party favoured the stricter test, which is now proposed. In other words, it rejected the reasoning of the noble Lord, Lord Carter, but somehow accepted his conclusion. Why did it do that? It is difficult to say because its reasons are not given. All that it says is that the stricter test now proposed would provide the,
	"necessary consistency, transparency and predictability".
	I have already said something on the subject of consistency. The noble and learned Lord, Lord Woolf, is right when he says that consistency is a most important objective. The noble Lord, Lord Pannick, is also right when he says that consistency is not incompatible with a degree of flexibility. In any event, as we all know, absolute consistency in sentencing is unobtainable. If we wanted a greater degree of consistency than we have, we ought to have gone the Minnesota route, which we have not done.
	It is therefore difficult to see what reasons the minority, as it were, could have had, but let me take them one by one. I have already mentioned consistency. The next was transparency. I fail to understand how transparency is relevant at all in this connection, but perhaps that, too, will be explained. Finally, it said that this was "necessary for predictability". In what sense is it "necessary"? Are the Government saying that it is necessary for the judges to be tied down in the way that is now proposed so that the Government may be able to predict the number of prison places that they may need in 2010, 2015 or 2020?
	With regard to "predictability", the working party says, in the next paragraph, that,
	"it is not possible for guidelines to control the prison population, as the prison population will depend on a number of factors the most important being the number of offenders brought to justice and the profile of the crimes they commit".
	I would add to that that the number of prison places needed will depend to a even greater extent on how much new criminal legislation is brought forward by the Government, how many new offences are created and things such as the indeterminate sentence for the protection of the public, which, by its very nature, is unpredictable.
	Perhaps the Minister will, in his reply, give an estimate of the extent to which the new test that is now proposed will add in any way to the predictability of prison population compared with these other matters. It appears that predictability was the reason why all this started. It is rather like trying to predict the inflow of water through a broken sea valve when the ship is sinking. In the mean time, I respectfully suggest that we stick with the test that we have under the 2003 Act until we have been given some better reason for changing it. I beg to move.

Baroness Butler-Sloss: My name, too, is on the amendment. The noble and learned Lord, Lord Lloyd of Berwick, has spoken in relation to judges. I should like to say something in relation to magistrates. The chairman of the Magistrates' Association has taken the trouble to attend this afternoon to demonstrate, through me, the importance to magistrates of the change that they foresee from including the word "follow" instead of "have regard to".
	As the noble and learned Lord, Lord Woolf, has said, and the noble and learned Lord, Lloyd of Berwick, picked up, consistency is not incompatible with flexibility. However, there is a point at which consistency becomes uniformity and uniformity is when flexibility goes out of the window.
	Perhaps I might be forgiven if I tell just one anecdote from a north London magistrates' court, in which I appeared very many years ago. I was representing a company whose employee had deliberately disobeyed the rules and had been caught; there was an absolute liability. I was hoping to say to the magistrates that this was not the company's fault and that there should be an absolute discharge. I walked in and the warrant officer, who knew me, said, "Morning, Madam. It's £10 today". My goodness me, it was. I sat there and every single case was £10, including that of my company, which had done absolutely everything to prevent their drivers from doing what this driver did.
	We have moved on from every case being £10 in the magistrates' court. Magistrates have very good training on sentencing, among other things. However, like judges, they need to have the opportunity to fit the sentence to the person; they need not only to have the opportunity to recognise the importance of consistency, as magistrates of course do, but also not to be put in a straitjacket. What they feel, and what I want to say on their behalf, is that having the word "follow" instead of "have regard to" will put them, as they see it—and I respectfully agree with them—into a straitjacket. It will not do. I strongly support what the noble and learned Lord, Lord Lloyd of Berwick, has said.

The Earl of Listowel: I strongly support what my two noble and learned friends have said. My noble friend Lord Tenby introduced me to members of the Magistrates' Association in the run-up to this Bill. It is as a result of that conversation that I speak now.
	I am concerned that Her Majesty's Government sometimes, with the best of intentions, too narrowly prescribe the range of actions of professionals on the front line. I am thinking of teachers, social workers and, in this case, magistrates. This micromanagement, as it is commonly termed, has a mournful effect on the morale of professionals and contributes to poorer outcomes and the disillusionment of practitioners. In Amendment 189, I seek to prevent such overprescription. I welcome the Minister's intentions to ensure that there is a consistency of sentencing, which is something that we all desire. However, as has been mentioned, the clause proposed in the Bill obliges uniformity of sentence, something quite different from consistency and unwelcome.
	As my noble and learned friend Lord Lloyd of Berwick has asked, what is the Minister's evidence for proposing this change to the statute book? The number of short-term custodial sentences—sentences of under six months—has decreased in recent years. Since a peak of 4.9 per cent in 2001, there has been a reduction to 3.9 per cent in 2007. This is a drop in real terms of 25 per cent, despite the number of offenders sentenced increasing by 4.6 per cent. New sentencing guidelines came into effect on 1 August 2008 and magistrates have been most positive in ensuring consistent adherence to them. Since October 2008, the quarterly figures have shown a continued decrease each month on the same period 12 months earlier of between 8 per cent and 15 per cent in the number of prisoners serving short-term custodial sentences. This is despite the number of sentences remaining constant.
	As the noble and learned Lord, Lord Lloyd of Berwick, said, what is the basis for changing the law? Paragraph 4.14 of the Gage report, which has been referred to, points out that no information is being collected on the numbers of departures from guidelines or the reasons for the departures. Are we being asked to legislate on the basis of simple anecdote and speculation? The summary of the report notes that many respondents saw,
	"a need for a period of stability avoiding further changes to sentencing and a concern that structured sentencing would lead to a fettering of judicial discretion and independence and ultimately to injustice".
	The "interests of justice" test does not reassure me, as, in my view, everything that the Bench does is in the interests of justice and full reasons are always expected to be given for whatever sentences are imposed. Unsurprisingly, the Magistrates' Association describes this current clause as an insult to the integrity of magistrates. It is strongly concerned that it will frustrate magistrates' imperative to apply the rule of law in each individual case.
	I respect the Minister's intentions. However, I am concerned that this clause will unintentionally undermine the outcome that we all wish to see. The Government are keen to recruit new magistrates and young professionals, but how will people be encouraged to participate in this decision-making if, as it seems, they will have little input as a result of their decision-making being so tightly prescribed? I look to the Minister for reassurance in his response.

Baroness Stern: I support those who have put their names to the amendment. I have not, in the past—I have to admit—been an avid reader of sentencing guidelines. However, lately, it is an activity that I have taken up. Most lately, I have read the definitive guideline, Breach of an Anti-Social Behaviour Order. I want to make a few comments on it in order, I hope, to elicit from the Minister an idea of how he sees the guidelines working in practice in everyday life in a courtroom.
	When looking at this guideline, I had before me the image of an old, alcoholic man with an ASBO, which says that he must not go into the city centre where the pubs are, and where his presence has been found to be unpalatable. I had that image before me because a number of press reports have come my way of such people breaching their ASBOs. This man wanders into the city centre and is therefore arrested and brought to court for breach. The court then has to deal with him and, to do so properly, as I understand it—I look to the Minister to correct me if I have not understood—the court must follow a 19-page document explaining the law, the meaning of it and the stages that the court has to go through. Under the heading "The decision making process", the document says:
	"The process set out below is intended to show that the sentencing approach for the offence of breach of an anti-social behaviour order is fluid and requires the structured exercise of discretion".
	There follow seven headings. But that is not quite all, because there is another section called, "Factors to be taken into consideration", which says:
	"Aggravating and mitigating factors specifically relevant to sentencing for breach of an ASBO are included in the guideline. Care needs to be taken to ensure that there is no double counting where an element of the breach determines the level of seriousness where it might in other circumstances be an aggravating factor. When assessing the seriousness of an offence, the court must always refer to the full list of aggravating and mitigating factors in the Council guideline on Seriousness (see Annex B)".
	So people have to read another document as well. Then, as I understand it, according to the grid that I studied, the old alcoholic who broke his ABSO will get a fine, band B—which I assume he will not be able to pay, because if he had any money he would have spent it on drink. Alternatively, he will get a "community order (medium)", which I assume he will not turn up for.
	In the light of the amendment, my question to the Minister is whether this is a good way of using judicial brains and resources, as well as the resources of the criminal justice system. Does the end result serve communities and solve the problems of alcoholic old men on the streets, or are we becoming slightly too framework-bound and determined to put everything into a grid? Is there no room for a little more flexibility, fluidity and looseness in dealing with the many human problems that courts come up against every day?

Lord Elystan-Morgan: The answer to the noble Baroness's question is yes. We are becoming tick-box obsessed. That may be at the root of Part 4. In the years that I served as a recorder and circuit judge it never occurred to me that there was a dearth of good advice on sentencing. In addition to the list that the noble and learned Lord, Lord Lloyd, properly referred to, one could have added the fact that about 20 years ago, if I remember rightly, we had an excellent institution of sentencing reports, as full and complete as one could possibly wish for. There was an amplitude of good material at the disposal of the intelligent and conscientious sentencer.
	Now all sentencers of every rank are in a situation of abject horror at the effect of this provision. There are no doubt many things about Part 4 that are quite laudable. There was probably a case for extending the Sentencing Guidelines Council's remit in so many regards to some extent. But the sovereign nature of the guidelines now brought about by Clause 111 is utterly objectionable. Those words mean what they seem to mean: "must follow". They are peremptory and mandatory. They cannot be anything else. The consequence is that sentencers will be placed in a straitjacket, will be enslaved, and will be mere ciphers and robots in a tick-box system. That goes to the very root of the administration of criminal justice in our country. I have the gravest doubts as to what the Government's motivation was. I appreciate the genesis of this. It started with the report of the noble Lord, Lord Carter, in December 2007 and the problem of prison overcrowding. He pointed to two possible solutions: massive building, which has been accepted by the Government, and the setting up of the Gage committee.
	That committee looked with great conscientiousness at the whole situation, but its recommendations are not exactly being brought into legislation by the Bill. Indeed, on the main matter, there was indecision in that committee. The committee's decision was to reject the Minnesota and North Carolina strictness and to opt for a somewhat less harsh regime. That regime is nevertheless utterly mechanistic, unimaginative and non-human, as far as the sentencer is concerned, in its approach. It is therefore a cancer that grows to the very root of the administration of justice and must not be allowed to persist.
	There is constitutional point that nobody has mentioned until now in these discussions. The wording of Clause 111 comes directly from New Zealand's Sentencing Act 2002. This is the second time in two days that we have been discussing legislation that has been culled completely from a New Zealand statute. The anonymity of witnesses provisions of the Bill are another instance. However, in New Zealand, the point is taken that so much authority is given to a sentencing council or commission that it is effectively making new law. Because it is making new law, it must pass, by way of order, through the New Zealand legislature.
	That point was raised at Second Reading in another place. The Secretary of State for Justice said that he had some sympathy with that view, but the Bill is totally silent on the matter. If it is sovereign and mandatory, as it is, I have no doubt that it is bound to have the effect of making new law that does not pass through Parliament. I have no real idea what the Home Secretary's intention was in this matter. He said that the,
	"suggestion that the proposal is driven by a desire to reduce the prison population is completely untrue".—[Official Report, Commons, 26/1/09; col. 47.]
	At a later stage of the Bill he outlined the intentions on the independence of judges:
	"First, and above all, the Government are trying to ensure respect and proper protection for the independence and autonomy of sentencers when they pass their sentences. That is critical: we need to provide considerable discretion, but we must also ensure that that discretion is exercised in a structured way that the public and other sentencers can understand. We are not fettering the judiciary, but we are saying that there should be a carefully moderated body of guidance".—[Official Report, Commons, 24/3/09; col. 241.]
	I am glad to hear that they are not fettering the judiciary. If they were, what they would have done would have been utterly frightening over and beyond what would be achieved by Clause 111.

Lord Henley: I—

Lord Woolf: I fear if I had not interrupted, I might have lost my chance to say a few words. Clause 111 causes me something of a problem. What I have heard during this short debate adds to my sense of that problem. It appears to me that in Part 4 the Government have been conscious that, if sentencing guidelines are going to work, they must have the support of the judiciary. The reason why the present Sentencing Guidelines Council, which will continue to exist until this legislation is passed, was presided over by the Lord Chief Justice was to try to indicate to the judiciary as a whole the importance of following the guidelines.
	The experience in the United States is that if you have a grid, the judiciary find their hands are bound in a way which it regards as being unacceptable. Therefore, it resorts to devices in order to avoid that effect in a case where they feel the grid produces injustice. No doubt those on the committee who recommended the current drafting were conscious of that and concerned about it and, therefore, included in their recommendation the important words at the end of subsection (1) of Clause 111,
	"unless the court is satisfied that it would be contrary to the interests of justice to do so".
	I do not know how those words are going to be interpreted but I would point out that the present test, which requires the judiciary to "have regard to", is working perfectly satisfactorily.
	In addition to the other matters relied on by noble and learned Lords who have addressed this issue, I would suggest that there is a grave disadvantage to adopting this new formula. If I was a judge and I was in a situation where I wanted to disapply the guidelines, I must confess that I would not find any difficulty in doing so. I hope I never passed a sentence when I was a sentencing judge which I did not consider at the time was in the interests of justice to pass. If that be so, presumably, if I was faced by a guideline which was inconsistent with what I wanted to do, I would say that I was satisfied that it would be contrary to the interests of justice for me to pass any other sentence than the sentence I wanted.
	It therefore seems to me, with greatest respect, that giving these words the natural meaning, far from reducing the discretion of the judge, in fact increases it. I do not know whether that is what is intended, but if so, perhaps we are getting unduly alarmed by the present subsection. I ask the Minister to indicate whether the interpretation I have speculated on is the one which the Government are urging on the judiciary. If it is, I do not think we want to be too concerned about the present language of Clause 111(1). My concerns are, however, that those distinguished lawyers who have anteceded me in addressing the Committee on this clause apparently were taking a different view from my interpretation. Therefore, I have reservations as to whether I am right. But to me, this does not look like a straitjacket; it looks like almost no jacket at all.

Lord Lloyd of Berwick: The difference between the three tests is clearly set out in Lord Justice Gage's report. They saw a difference between the three tests and rejected the one which is proposed by the Government. So there is a difference between them.

Lord Henley: I apologise to the noble and learned Lord for intervening before him. Where we speak in the batting order in Committee does not matter particularly, but his intervention is at least interesting in that it has no doubt provided some solace for the Government.
	It is a convention in this House that we can put down only four names to any amendment. However, my late noble friend and I so much wanted to support this amendment in the name of the noble and learned Lord, Lord Lloyd, and the other noble Lords who have spoken, that we added our own Amendment 189A, which amends the second paragraph and changes "follow" to "have regard to". I do not need to add much to what they said other than to say that we very much support it. The question is how we should take it from now on. The noble Lord, Lord Elystan-Morgan, questioned the Government's motivation in using the words "must follow" rather than "must have regard to". For once I am going to be kind to the Government and suggest it might be inadvertence on this occasion rather than malice that has brought them to put this forward.
	I suggest to the noble and learned Lord that it might not be appropriate to divide the Committee on this matter tonight. We now have a long summer ahead of us—one of these recesses the Government give us that seem to go on for ever. That will give the Government an opportunity to re-examine the clause and come back with improvements. We hope that the Government will agree with the fundamental principles that have been put forward by those who support this amendment and will draft their own amendments along the lines that have been suggested by the noble and learned Lord. It will not take much tweaking to remedy this and get it right.
	I have one other question. There are four amendments in this group—one in the name of the noble and learned Lord, one in my name and two government amendments. Before any decision is made, we obviously need a proper explanation from the Government as to what their amendments are about because I cannot quite understand them. It may be that, in the myriad of letters that have been pouring out of the Ministry of Justice over the past few months, there was one letter dealing with these amendments. If so, it is probably in the wrong tray on my desk and I cannot find it. But no doubt the Minister will give us an explanation which all those who have spoken will want to consider carefully before deciding what to do. Again, now is not necessarily the moment to press this, but the Government need to come forward with something better before Report. For once, rather than the usual two weeks, they have something like three months to consider this. That should be enough time even for the Ministry of Justice. We can then make up our minds come October as to what to do about it.

Lord Thomas of Gresford: Sentencing guidelines can be extremely helpful, particularly for the young tyro sentencer who does not want to pluck a sentence out of the air but wants to know what the general going rate is. With that at the back of his mind, he can apply what he thinks is just in the particular case.
	Twenty years ago at a judicial studies conference the question was asked: how can we have consistent sentencing all over the country? I recall I proposed that, instead of having the Court of Appeal decide sentencing appeals, three circuit judges from different circuits should go round the country deciding sentencing appeals and we would thereby achieve some sort of consistency. I recall that my proposal was voted down by 60 votes to two. The other day I spoke to the person who supported me on that occasion. He had completely forgotten about it but I have not—it is burnt into my soul. On the other hand, we are not used to winning on this side, so it does not worry me too much.
	I was a member of the Gage committee until I resigned because I felt that it was too political and that it was not appropriate that I should continue. One of the concerns of the Gage committee was the effect of the grid system that had been examined in Minnesota and South Carolina. The members of that committee were concerned that it had increased sentences significantly, the use of a formula was not satisfactory and that it just increased prison places. Your Lordships may recall that, possibly at Second Reading of the Bill but certainly fairly recently, I pointed out that if we were to sentence in accordance with the average sentences passed throughout the European Community, to which we belong, instead of having 80,000 people in prison we would have 58,000 and there would be ample prison places. Therefore, I approach the Bill with suspicion. When I see that a member of the Sentencing Council is to be a statistician, I question why that is so. What does a statistician know about justice, sentencing and what exactly happens in the courts? Clause 113 is headed, "Resource implications of guidelines". It states that where the council publishes draft guidelines or issues guidelines as definitive guidelines, it must publish a resource assessment of,
	"the likely effect of the guidelines on—
	(a) the demand for prison places,
	(b) the resources required for probation provision, and
	(c) the resources required for the provision of youth justice services".
	That is fine. Perhaps the Minister can put me right, but I do not think that the current Sentencing Guidelines Council has the job of trying to assess how many prison places are required as a result of what it is putting forward.
	I recall another sentencing conference in Wales addressed by Lord Justice Tasker Watkins VC, who said, "Don't you worry about prison places; you pass the sentences you think are right and it's for the Government to find those places". If the council must take resource implications into account when it publishes its guidelines, and judges did not follow those guidelines, it might knock its assessments about a bit, and its assessments of prison places might not be neat and tidy and accord with what the Home Office wants. We are not concerned with prison places as such. We are not concerned with units. I think that I mentioned on Monday my opposition to having prisoners appear in court on television screens, as that depersonalises them. I sometimes feel that the Wizard of Oz in the Home Office, who is full of knowledge about everything, sees prisoners not as people but as units to be slotted in, and that we have to ensure that we have enough places into which we can slot them.
	To my mind this simply takes away from the judiciary its traditional role in a democratic society. I keep on emphasising that because sometimes you hear Ministers, such as former Home Secretaries, suggesting that judges are unelected and therefore one must not have any regard for what they say. Judges are part of our democracy and have a function. Part of their function is to ensure that people who come before them have their just deserts. If it means locking them up for the rest of their lives, so be it. Each individual is not a unit to be slotted in. I am very suspicious about the fact that the proposed guidelines council will have to produce an assessment of prison places, and that judges must follow the guidelines that the council lays down so that the places and the units slot together.

Lord Bach: I thank the noble and learned Lord, Lord Lloyd of Berwick, for introducing the debate. I also thank all noble Lords who have spoken in it. Very important issues are at stake. Before I outline the government amendments, I make it clear that we are not suggesting, of course—as I know the Committee agrees—a United States-style grid with narrow sentencing ranges. That idea was firmly rejected at an early stage by the independent working group chaired by Lord Justice Gage. The membership of that committee comprised most distinguished lawyers and criminologists. It was not so distinguished once the noble Lord, Lord Thomas of Gresford, resigned from it, but it was still fairly distinguished, even without him.
	I wish to quote from the Second Reading speech of the noble Baroness, Lady Linklater. She said:
	"We are very glad that the sentencing grid, as proposed by the noble Lord, Lord Carter, has been rejected and that the current proposal in the Bill broadly reflects, instead, the conclusions of the working group under Lord Justice Gage, who had looked closely at the Carter proposals. The wording of the Bill is that the courts must have regard to the guidelines, but there is also the important caveat,
	'unless the court is satisfied that it would be contrary to the interests of justice to do so'.
	I am well aware that this is causing real concern for sentencers and that it will require careful scrutiny. However"—
	I take comfort from the following words—
	"it is a serious attempt to balance the need for consistency with the need for judicial discretion. It will be important to ensure that it never becomes an exercise in predicting prison numbers, or that its emphasis is perceived to be on the punitive, as opposed to the restorative and rehabilitative, element of sentencing".—[Official Report, 18/5/09; col. 1290.]
	I do not know whether I was wrong to do so but I took comfort from what the noble Baroness said at Second Reading on behalf of her party.

Baroness Linklater of Butterstone: I stand by what I said. Indeed, I stand shoulder to shoulder with the noble and learned Lord, Lord Woolf, on this. The caveat was the very important underlying part of the framework. We have a serious problem with regard to an upward drift in sentencing to custody. Therefore, I stand by what I said.

Lord Bach: I am grateful to the noble Baroness. Her noble friend Lord Dholakia expressed even greater support for the Government's proposal. He said:
	"Fourthly, there will be a different statutory test governing cases in which courts depart from the guidelines. At present, courts have to consider sentencing guidelines and give reasons if they depart from them. Clause 111 requires courts to follow the guidelines,
	'unless the court is satisfied that it would be contrary to the interests of justice to do so'".
	The noble Lord has huge expertise in this field. He continued:
	"Some critics of the Bill have suggested that this is too restrictive a test, but in my view it is entirely proper that a court departing from the guidelines should have to show that this is in the interests of justice. What other good reason could there be for passing a sentence different from the guidelines than that this is necessary in the interests of justice? I therefore welcome the provisions for the new Sentencing Council".—[Official Report, 18/5/09; col. 1285.]
	That ends the quotation.

Lord Lloyd of Berwick: I am grateful to the noble Lord for giving way. What is his position? Is he saying that the proposed new test is stricter or less strict than the present test? Which is it? The noble and learned Lord, Lord Woolf, seems to think that it may be less strict; others—among whom I include myself—think that it will clearly be more strict. What is the Government's view?

Lord Bach: I think our view is that it is slightly stricter, but I place the emphasis on the word "slightly". It gives, with the caveat, something that I would argue means that there is no need for noble Lords to think that somehow this is—to use a cliché—the end of civilisation, or the end of justice as we know it. It is not. Judges' discretion is, because of the caveat, every bit as great as it has always been.
	The noble and learned Lord, Lord Woolf, asked a couple of relevant questions. How has "the interests of justice" been interpreted? I will do my best with this. It has been used in sentencing-related legislation—as the noble and learned Lord will know much better than me—to enable courts to deal with circumstances which are exceptional and particular to a case. I repeat: exceptional and particular to a case. The words can be interpreted by the courts and then incorporated in guidelines. We believe that the Court of Appeal is likely to provide guidance in the interpretation of the "interests of justice" test.
	We have adopted the recommendation of the majority of the working group that there should be a more robust duty to follow guidelines, subject to an "interests of justice" test. We believe that this gives wide discretion to sentencers to depart from guidelines where, in the interests of justice, it would not be appropriate to follow them. This means that a sentencer can depart from the guidelines where, for example, there are compelling mitigating factors—mercy killings would be one example of this—or indeed where the aggravating factors are so serious that the sentencer feels the need, in the interests of justice, to impose a more severe sentence than is set out in the guidelines.
	I indicated at Second Reading that the Government would be receptive to ways to ensure that the right balance was struck between the duty on sentencers to follow guidelines and the need to exercise discretion in individual cases. Thus the two government amendments in this group—Amendments 189B and 189C—are designed to achieve that balance. Amendment 189C does two things. First, Clause 111 has been redrafted to make it clearer that the duty to follow guidelines does not mean that a sentencer has to sentence within a narrow category; rather, the sentencer is required to sentence only within the entire guidelines range for the offence, unless it is in the interests of justice to depart from the entire guidance. Secondly, the amendment seeks to clarify the duty on sentencers—where there is a guideline that identifies categories of offending behaviour—to identify the category that most resembles the case before them. This amendment means that the duty of the court to decide which category most resembles the facts of a particular case does not apply if there is not a sufficient resemblance. There is already a wide range of discretion for the sentencer, and we hope that these government amendments make that discretion even clearer.
	Let me illustrate this with a practical example. If we take an offence such as robbery, we see that there is an existing guideline issued by the Sentencing Guidelines Council. That guideline is formatted in a way which subdivides the offence into three levels of seriousness. That is the preferred format but, as our earlier group of amendments made clear, it is not mandatory. Assuming that robbery guidelines are subdivided, the duty on the sentencer to follow guidelines is to sentence within the whole offence range—that is, the range for the entire guideline. For the current guideline the offence range goes from a custodial sentence of no years to 12 years' custody. This amendment makes it very clear that the duty does not force the court to stay within the subdivided range known as the "category range". However, the Committee should note that there is sufficient flexibility to have as many or as few categories within a subdivided offence-specific guideline as appear to the council to be appropriate, given the nature of the offence. Again, we should not forget that this duty to follow the guideline—to sentence within that range of 0 to 12 years—does not apply if it is not in the interests of justice to do so.
	Furthermore, Clause 111 makes it clear that where there is a subdivided guideline which has starting points and ranges for each category, there is a duty on a sentencer to identify the category that most resembles the case before them. Amendment 189C provides further clarification that this part of the duty does not apply when the sentencer considers that the case they have before them does not sufficiently resemble any of the categories. In other words, a sentencer is not required to try to shoehorn a case into a guideline category. I argue that the government amendments make very clear the wide discretion that exists within this duty to follow guidelines. There is no requirement on a sentencer to sentence within a narrowly defined range. It is not, in our view, correct to say that this duty is unduly restrictive, that it fetters judicial discretion or that it stops the sentencer from doing justice in an individual case. That power of a sentencer, be it a magistrate or a High Court judge, remains as it always has.
	It is important that we have properly constituted guidelines and that these guidelines be followed. It has been said from all sides in this debate that guidelines assist sentencers; they help to provide consistency, which earlier in today's proceedings was considered to be an absolute sine qua non, if I may use the expression. Consistency is what sentencing should be about. Guidelines can also increase public confidence in sentencing. That is why the Government believe that these provisions allow sentencers a clear and wide degree of discretion.

Lord Elystan-Morgan: May I put a very simple question to the Minister about the rationale that underlies Part 4? Is he saying that, up to now, many sentences have been misconceived; and were inconsistent because the wrong approach was adopted by the court? If so, can the Minister give any indication of whether Her Majesty's Government made any calculation of what percentage of sentences that was? Was it minuscule, substantial or massive? Secondly, can I put a point that I raised two nights ago very late at night? I did not then expect the Minister to reply. That concerned what the Court of Appeal decided in 2007 in relation to the whole question of guidelines in the case of R v Martin. The court said that guidelines are guidelines—no more and no less. It seems to me that, in light of what the Minister is now saying, guidelines will be something much more than mere guidelines.

Lord Bach: It will be expected that the guidelines are followed unless it is not in the interests of justice as far as the individual judge who is sentencing is concerned. The noble Lord asked for examples; I will give one. It comes from the Gage report and I do not make great claims for it, but the noble Lord asked me and I give it to him. I do not claim that it is systematic or that it proves anything in itself. The Gage working group surveyed sentencing decisions in 10 Crown Courts. In that survey, in 46 per cent of cases, sentencers sentencing for the offence of burglary passed a sentence that was outside the guideline range. That may well have been justified in the circumstances of those 46 per cent; on the other hand, it may have been a rather high percentage that was outside the range.
	It must have been—I was going to say anecdotes—evidence, whatever you want to call it, like that that made the majority of the working group, a distinguished working group, under a very distinguished judge, argue, on a majority:
	"The application of guidelines should be sufficiently robust to provide the necessary consistency"—
	the noble and learned Lord knows what is coming next—
	"transparency and predictability".
	This argues for a presumption that the guidelines have to be applied, following the New Zealand model in the New Zealand Sentencing Act 2002. I will just read what that Act says:
	"A court must impose a sentence that is consistent with any sentencing guidelines that are relevant to the offender's case, unless the court is satisfied that it would be contrary to the interests of justice to do so."
	That is what we are attempting to do in the Bill, following the majority view of the Gage working group.

Baroness Butler-Sloss: I am grateful to the Minister for giving way. I am having some difficulty in understanding this. I am not a criminal lawyer, but the Minister on the one hand says that the word "follow" is a bit more strict than the words "have regard to"; but he says that the discretion of the judge is equally broad. I just do not understand it.

Lord Bach: I hope that what I said was not "a bit" more, but was "slightly". That is our view and I think it was probably the view—although how dare I speak for them?—of the members of the Gage working group. They had before them various choices. They had the United States experience, which they rejected out of hand—I think everyone here agrees that that was the right thing to do. They had the Criminal Justice Act 2003, which has been praised by noble Lords this evening in a way I do not think I have ever heard that Act praised before in this House. They also had the New Zealand Sentencing Act 2002. They had these three before them; I have no doubt that they may have had others in mind too. On a majority, they favoured the phrasing that was used in the New Zealand Sentencing Act 2002. The Government, too, in their turn, following the Gage recommendation—and it was a recommendation—think that that is an appropriate way of phrasing this issue.
	The "interests of justice" phrase is the most significant phrase in all this, as the noble and learned Lord, Lord Woolf, was arguing. It means that a judge can pass the sentence that he or she wants to pass. That is why I find it hard to see what the objection is to the use of the word "must", as far as the guidelines are concerned, as opposed to the words in the 2003 Act.

The Earl of Listowel: I thank the Minister for giving way and I appreciate his great care in responding to these questions. Is he concerned, as I am, given the response of the noble and learned Lord, Lord Woolf, that others may misunderstand the Government's intentions and, far from making the guidelines slightly more strict, it might have the opposite effect and the judiciary might treat the guidance with less respect and more freely? I am concerned. I would like some clarity, please.

Lord Bach: I do not know whether the noble Earl would be pleased if that is the way the judiciary responded.

The Earl of Listowel: I—

Lord Woolf: May I make it clear that, if there are guidelines, I would expect the judiciary to follow the guidelines. What the guidelines do—and to this extent, I do not believe that they differ from the previous guidelines—is to set down what you, as a judge, in the normal way, should regard as the appropriate sentence. However, if there are circumstances that mean that you do not feel it would be just to apply the guidelines and you are satisfied as to that, you can depart from them. The previous test was framed differently. The previous test said that you must have regard to the guidelines, but it also went beyond that, because, as the Minister indicated, if you were going to depart from the guidelines, the judge had to give reasons for departing from the guidelines.
	The process of reasons, it seems to me, is doing no more than, in effect, saying, "These are the reasons why I do not think it is right to apply the guidelines". To put it in other words, "These are the reasons why I do not think it is just to apply the guidelines". Here, it is in different language and it may have the undesirable effect of introducing uncertainty, which would be unfortunate, but I do not think there is really much difference between the tests.

Lord Bach: I do not think I can do better than the noble and learned Lord, Lord Woolf, in the way he described the position. The reason we are seeking to change the law in this regard is because the Gage working party thought there was a need to be slightly more robust and it thought that this phraseology was more robust than the existing one. They were concerned with consistency. As for predictability, that is important because we need to plan for prison places and probation resources. That does not mean that sentencing is determined by resources, but it is key to the Gage report recommendations. We need to improve predictability, because we do not want a sentencing grid.
	The Gage report, at paragraph 4.14, says that there is, at present, no information on departures, but it goes on to say:
	"In our view this represents another defect in the present system".
	I am asked why transparency is relevant. It is relevant so that the public and victims of crime have some understanding of the range of sentences that are likely to be imposed for a given offence. I put it as broadly as that. It is also important, of course, to defendants, so that they know what they might expect if they commit, or have committed, a crime, and, of course, for lawyers who represent them.
	I am conscious that I have been on my feet for some time. I hope I have put the Government's case on this. I think the complaint that this is somehow going to restrict judges' independence of action on sentencing to an extent whereby they become mere ciphers and just do what the state wants is hugely misplaced. It is for those reasons that I am going to move the government amendments in due course and I ask the noble and learned Lord, Lord Lloyd, to withdraw his amendment.

Lord Lloyd of Berwick: I think that the Minister has accepted that this test is only slightly more strict than the existing test, in which case, is it really worth all this upheaval? It has not been pointed out to me what benefit there is in changing the test. The only one appears to be consistency, but I am not clear how it will help consistency in any way. As for the noble and learned Lord, Lord Woolf, I am bound to say that I disagree with him when he says that these two tests will be treated as being the same. I do not think that they will be. As a matter of common sense, judges all over the country will see this as being, and as having been intended to be, a stricter test than that which they already apply. Having said that, I beg leave to withdraw the amendment.
	Amendment 189 withdrawn.
	Amendment 189A not moved.
	Amendments 189B and 189C
	 Moved by Lord Bach
	189B: Clause 111, page 69, line 15, leave out "contain provision by virtue of section 107" and insert "are structured in the way described in section 107(2) to (5)"
	189C: Clause 111, page 69, line 17, leave out subsections (3) and (4) and insert—
	"(3) The duty imposed on a court by subsection (1)(a) to follow any sentencing guidelines which are relevant to the offender's case includes—
	(a) in all cases, a duty to impose on P, in accordance with the offence-specific guidelines, a sentence which is within the offence range, and
	(b) where the offence-specific guidelines describe categories of case in accordance with section 107(2), a duty to decide which of the categories most resembles P's case in order to identify the sentencing starting point in the offence range;
	but nothing in this section imposes on the court a separate duty, in a case within paragraph (b), to impose a sentence which is within the category range.
	(4) Subsection (3)(b) does not apply if the court is of the opinion that, for the purpose of identifying the sentence within the offence range which is the appropriate starting point, none of the categories sufficiently resembles P's case."
	Amendments 189B and 189C agreed.
	Clause 111, as amended, agreed.
	Clauses 112 and 113 agreed.
	House resumed. Committee to begin again not before 8.40 pm.

Electricity and Gas (Community Energy Saving Programme) Order 2009

Copy of the Order
	20th Report from the JCSI
	24th Report from the Merits Committee

Motion to Approve

Moved By Lord Hunt of Kings Heath
	That the draft order laid before the House on 2 July be approved.
	Relevant documents: 20th report from the Joint Committee on Statutory Instruments and 24th report from the Merits Committee.

Lord Hunt of Kings Heath: My Lords, these two orders implement an important part of the home energy saving programme announced by the Prime Minister in September last year. They are aimed at helping households permanently to cut their energy bills and contributing to permanent CO2 reductions. Both orders have been developed closely with stakeholders and were warmly received and supported through formal public consultation.
	I shall speak to the CERT order first. CERT is a programme that, alongside its predecessor—the energy efficiency commitment—has already demonstrated its effectiveness. Over 6 million households have been helped with energy-saving measures such as insulation since 2002, with around 1 million households assisted in the past year alone. However, we need to keep increasing our efforts if we are to help the most vulnerable in society and to meet our security of supply and climate change goals. As part of this, we consulted earlier on a proposal to increase the CERT obligation on energy suppliers.
	This consultation received substantial support for an increase, and the order gives effect to this by increasing the suppliers' target by 20 per cent—from 154 million lifetime tonnes of CO2 to 185 million tonnes—which will mean making annual savings of more than 5.6 million tonnes of CO2 by 2011. This makes it the biggest household carbon-saving programme by some distance. The effect of this will be that an extra £600 million is likely to be invested by energy suppliers in helping households to install energy-efficiency measures, bringing total support under the programme between 2008 and 2011 to an estimated £3.2 billion. Of this, we estimate that around £1.9 billion will be directed at vulnerable households in the priority group of customers who are 70 years and over, and those on qualifying benefits.
	Alongside the increased target, we consulted on a number of specific changes to the design of the scheme. We consulted on the principle of including behavioural measures, namely home energy advice and real-time displays, as eligible measures within the scheme. This will help people better to understand their energy use and, we hope, empower consumers to take informed decisions on reducing their energy use.
	We received many responses on this point—not all of the same view—but on balance we have decided to include these measures within CERT. We have recognised the risks raised by some stakeholders that, as real-time displays are novel, long-term studies of the carbon-saving effects are not yet available. However, we believe that we should use behavioural measures and that they will reinforce the take-up of traditional measures. Given that they are new measures, suppliers will be able only to promote behavioural measures of up to 2 per cent of their carbon-saving target.
	We proposed in the consultation to curtail the number of compact fluorescent lamps directly mailed to households, in recognition of the high number of high-efficiency lights distributed early in CERT. Many households have been able to save energy with CFLs, and while we recognise the risks of non-use from continuing such high levels of distribution, we are, therefore, working with Ofgem to ensure that a broad range of bulbs are promoted by suppliers, whereby consumer choice is respected as far as possible in terms of the light fitting, lamp design and wattage output promoted. We have also decided that, as from 1 January 2010, only those schemes which result in a direct purchase of a CFL through a retail outlet will be eligible under CERT—thus excluding direct mail and other "give away" schemes.
	I now turn to the community energy saving programme. This order places a new carbon-reduction obligation on energy suppliers and, for the first time, on electricity generators, to deliver an estimated £350 million of energy-efficiency measures to homes. These measures will reduce CO2 emissions and permanently reduce fuel bills. CESP places a carbon-reduction target on obligated energy companies, which they discharge by delivering carbon-abatement measures in homes. They will achieve this by offering a range of energy-efficiency measures, similar to CERT, which count towards their targets.
	The distinction between CESP and CERT is, first, that CESP will aim wherever possible to provide a package of several different energy-efficiency measures to each home that it targets, with a particular focus on some of the more expensive measures, such as solid wall insulation, geared towards hard-to-treat homes. CESP should, therefore, make a significant difference to the carbon emissions, and the fuel bills, of the homes it targets.
	Another important difference is the community approach which CESP will deliver in deprived areas. It is an ambitious and innovative programme. We expect it to make a big impact in the areas which it supports. The aim is to deliver up to 100 schemes, benefiting some 90,000 households across Great Britain and, by December 2012, delivering measures which will save nearly 2.9 million tonnes of CO2. We estimate that CESP will deliver lifetime fuel bill savings in excess of £600 million. However, CESP will also be important in informing the longer-term strategy on energy efficiency. It will provide evidence on the benefits of using a community-based approach to deliver energy-efficiency measures, particularly in hard-to-treat homes. This community approach is one of the key features of CESP. Energy suppliers and generators also will benefit from working in partnership with local authorities and community organisations to help promote and deliver measures.
	This approach is important to enable CESP to be implemented in a way that is best suited to individual communities, bringing people and groups together to deliver shared objectives. It is also, importantly, specifically designed to deliver whole-house packages of measures in individual homes, with the aim of improving energy efficiency and lowering energy consumption for each household. This will enable householders to make a single decision about which measures are installed.
	It is important to note that we expect these measures generally to be free to householders. This, coupled with the fact that CESP will specifically incentivise high-cost measures, such as solid wall insulation, will therefore have a major impact not only on a household's carbon emissions but on its future fuel bills.
	I am grateful to the Merits Committee for its helpful consideration of both orders. I assure noble Lords that the orders are fair, complement each other, and form part of a cohesive approach.
	The consultation was very positive towards CESP, but we have made some changes. We have expanded the list of eligible measures to include draught-proofing and high-efficiency glazing, to strengthen CESP's whole-house approach. Also, in response to consultation, some respondents raised concerns that independent electricity generators would bear disproportionate costs when compared to energy suppliers—particularly where they had no experience of delivering CERT. We recognised through the consultation that the costs for these companies might be particularly uncertain.
	To address these concerns, many consultees believed that obligated parties should be able to trade up to 100 per cent of their obligation and not just the 75 per cent that was proposed in the consultation. They argued that this would assist independent electricity generators and other new parties under CESP by enabling them to trade their obligation to companies whom they believed could potentially achieve the same carbon saving more easily and cost effectively. This would also give these companies upfront certainty as to their total financial commitment. On the basis of these views, we have decided that all parties with obligations under CESP will be able to trade up to 100 per cent of their obligation.
	Consultation has demonstrated considerable support for the amendments to CERT and encouragingly for the new CESP scheme. I commend the orders to the House and look forward to the debate. I beg to move.

Lord Reay: My Lords, the measures contained in these orders, whatever their merits—I certainly would not wish to assert that they have no merits—will add substantially to the costs of electricity users. If I follow the report of the Statutory Instruments Committee correctly, the 20 per cent CERT increase will cost £1.1 billion, which, as it happens, is about the same amount as electricity consumers pay today on an annual basis for the ROC subsidy to wind-farm operators. According to paragraph 4 of the committee's report, the CERT £1.1 billion is accounted for by a £363 million cost to householders to part-pay for measures—presumably capital costs—and £582 million to energy suppliers who will, of course, as they are explicitly permitted to do, pass it on to consumers and a £160 million cost to local authorities and social landlords. How much of these costs will be recurring, how much are one-off costs and over how long a period will they be spread? To ward off criticism, the Government in their impact assessment have introduced an enormous figure which they simply assert will be the financial long-term benefit of the measure over its lifetime. In this case they have picked the figure of £3,523,000,000.
	The Government hope that the improvement in the standards of energy efficiency, which the CESP order seeks to promote, will bring a reduction in the number of households classified as being in fuel poverty. It seems to me highly probable that that could be more than offset by the number pushed into fuel poverty by the increase in their bills due to companies passing on their costs. That possibility is mentioned also by the Statutory Instruments Committee.
	In recent years, the number of households classified as being in fuel poverty has been increasing. The Government have been moving away from, not towards, their fuel poverty targets. The community energy saving programme is directed at the lowest income households in an attempt to deal with the fuel poverty problem. That will only add to the costs which the companies will have to recover from all other consumers and, as the Statutory Instruments Committee report points out, there will be very few beneficiaries in rural areas, only payers. Therefore, issues of fairness arise, as the committee points out, as well as affordability.
	Of course, not all increases in electricity bills are necessarily attributable to climate change legislation such as this. In my submission, the consumer should be informed of the contribution that he is making towards meeting the Government's climate change targets. The Government are always singing the virtues of transparency in other contexts, so why do they not oblige electricity suppliers to inform their customers, private and business, on their bills of how much is attributable to each relevant piece of climate change legislation? Would that not be in the interests of transparency? Would it not also give consumers the moral satisfaction and, to some extent, the kudos of knowing how substantial their contribution was to meeting what the noble Lord, Lord Hunt, only this afternoon called the moral challenge of our time, or are the Government afraid that if consumers knew what they were paying, that would spell the end of any chance of the Government meeting their fanciful renewable energy targets?

Lord Patten: My Lords, I agree with absolutely everything that my noble friend has just said. I wish to make two points on the community energy saving programme and two points on the carbon emissions reduction order. Today has been a big day for energy news and doubtless there will be much commentary on what has been said—my noble friend has just alluded to some of it. It is reasonable to relate these orders to a couple of the bigger issues and the broader picture before I go on to my four points.
	A certain amount in the orders relates to wind. Sadly, by the end of July, we shall have no major domestic wind systems manufacturer in this country as the Vestas plant is being shut down on the Isle of Wight and on the mainland in Southampton, with the loss of 600 jobs. I am very concerned about capacity. I shall not labour the point because doubtless it was dealt with this afternoon on the Statement.
	I am also concerned about the consumer, as my noble friend was in his formidable expose. Yesterday and today, the First Secretary has been very busy recalibrating, to use a delicate phrase, the Government's approach to cuts in spending, in effect, saying that the Government should be much more straightforward about the problems that they would face if they continue in government. It is important that the Minister lets the House know whether all additional costs on consumers which may come from these two orders are built into the figure of the average cost laid on consumers across the country of £90 or £92 given by the Secretary of State in another place. Have those costs been rolled in? I happen to think—I do not know what my noble friend thinks—that the suggestion that it is a mere £90 is rather strange and that the actual burden will be much closer to £250, as experts have been saying during the course of the day.
	In a spirit of inquiry, I would love to know the answers to those questions. It has always been enjoyable inquiring of the Minister, as he and I used to debate in the council chamber of the City of Oxford. He has always been lucid and straightforward in what he has said. At the time, the town clerk in his wig passed a comment on the pair of us saying that we showed some promise if only we concentrated a bit more. Look where we ended up.
	Turning to the orders, on the community energy saving programme order, I am concerned about the geography of the areas that will benefit from the quite interesting experiments which will be carried out and monitored between now and 2012. Unfortunately, a lot of deserving communities in low-income areas will not benefit. A walk over a few hundred yards from the City of London, where I work during the day, into the East End means crossing a gross-domestic-product-per-head fault line. It is like falling off a cliff of higher incomes to lower incomes. I do not think that the people in that area will benefit, although I am happy to be corrected on that. Will the Minister undertake that he and his officials will consider the fairness of the geography of the scheme when evaluating it up to 2012?
	Is the Minister really convinced that the community energy saving programme order can be delivered by energy suppliers and electricity generators for as little as £350 million? I think that is an underestimate. Are not these estimates often overoptimistic—just as is, it seems to me, the estimate given by the Secretary of State in another place today on the costs likely to be laid on consumers following the package that he has announced? Consumers have every reason to be worried, as my noble friend Lord Reay pointed out.
	I turn to the two points that I wish to make about the carbon emissions reduction order, which is trying to help with the 20 per cent increase in the carbon emission reduction target. There has been a lot of consultation about that and some sensible responses to the consultation by the Government, notably in reaction to providing carbon-saving uplifts to both do-it-yourself and professionally installed loft insulation. I welcome the Government's positive response to representations made. There have also been a few daftnesses—if that is a word; doubtless Hansard will correct me if it is not—in past policies, such as allowing direct-mailed high-efficiency light bulbs to be qualifying measures. I never thought that that was sensible. Why do we have to wait until the beginning of 2010 to stop that direct-mailing practice, with HECA- tudes of bulbs piling up in some peoples homes where they are not used? Why can it not be stopped immediately, or at least as soon as the beginning of the fourth quarter of 2009?
	My second point is again on what may be termed gimmicky ideas. I appreciate that trying to introduce some of the things that the noble Lord has spoken about—taking up real-time displays, for example, and smart metering—require not just money but considerable changes in what doubtless professionals in the trade call consumer behaviour. That means, so we are told in the order, that there will be an awful lot of home energy advice. Home energy advice is not adequately costed. It is referred to more than once. Is any of the so-called home energy advice to persuade consumers to change their behaviour, take up real-time displays, to indulge in smart metering, and all the rest of it, to be a public cost, in whole or in part? Putting it in shorthand, is there an advertising budget for that with which HMG are concerned?
	Following the First Secretary's rightful remarks over the past two days that the Government should really come out and say what they are spending and what they are cutting, it is best to be open about those costs. I rely on the Minister to do just that.

Lord Teverson: My Lords, I will not detain the House long on the orders; I will attempt to damn them with faint praise. First, they are fairly complex instruments and fairly difficult to understand. I am not sure that, for the size of the task, they are the right tool. To put this into context, about 27 per cent of carbon emissions come from the household sector; there are about 22 million houses out there, just a handful of which are at the standards we would want to build them to in 2016; and 14 million of those are already well below standard. Where does this get us in terms of that stock, 80 per cent of which will still be around in 2050?
	These two measures, although commendable to a certain degree, are fairly small in their effect on the overall picture. In fact, I believe that the CESP is expected to affect 90,000 households, which is about 0.5 per cent of the total housing stock, yet we require something like a 29 per cent cut in carbon emissions in the sector, as we heard earlier.
	One thing that I find fundamentally flawed about this—I am slightly off piste in terms of my party on this point—is whether the energy companies are really the right people to deliver the programme. I was interested in the evidence base in paragraph 3, which stated that household energy suppliers are well placed to deliver carbon dioxide savings from their customers. It states that they are well placed to inform them of the potential measures to save money—to save energy. The key thing for an energy company is to produce efficient energy and to sell it to its consumers. To get them to concentrate in this area is a bit like putting the editor of the News of the World in charge of phone-tapping policy.
	If we sat on the board of one of those energy companies—perhaps some people here do, I do not know—I cannot imagine that high up on the agenda of their key performance indicators is carbon emissions and energy saving targets. Clearly, they will be making sure that they comply with government targets, and the orders increase them, but I think that it is an area of delivery that is bound to fail.
	I want to ask the Minister two questions. Normally, when we go through these orders, we all ask about 10 questions. Usually, the Official Opposition get about half of them answered; the Lib Dems about 25 per cent. I shall stick to two questions. We talked earlier this afternoon, in the debate about the White Paper on moving to a low-carbon economy, about the North Sea gas transition programme, which is the big game, the big opportunity. I know that the orders are included in the White Paper as part of that overall reduction, but, for me, that is key: the street-by-street conversion policy that goes through UK plc. It may be very difficult to do, but that is the big game. To me, this seems like a sideshow. How do those two come together?
	At the other end of the scale, do the orders really tackle the issue of the poor consumer in fuel poverty in the north-east of England—an example I was asked to give by one of my colleagues—who is elderly, a tenant and whose landlord is not interested in any of this, but just collecting a rent, who is on a prepayment meter, which are still being installed throughout the country? Do the orders help that citizen to get out of their fuel poverty and get their landlord to put in proper energy-saving measures that ensure that they can live securely and warmly in their environment?

Baroness Wilcox: My Lords, I was going to thank the Minister for explaining this so well, but I am not so sure now, having listened to everyone else. Maybe I have missed a few things here. I know for sure that the question of the noble Lord, Lord Reay, about the cost to the consumer, particularly the disadvantaged consumer—a point taken up by the noble Lord, Lord Teverson—is valid. We know that the Government are a little slow on getting round to tackling fuel poverty. They have been very slow, and they are not getting any faster.
	The noble Lord, Lord Teverson, asked one or two questions that I had written down, which I shall not repeat because he has already asked them. Perhaps I may just whistle through one or two. We support the carbon emissions reduction target and the sentiment behind the community energy saving programme, but we are concerned about the implementation, aware that the Government recently spent, as we heard, £16 million on the Warm Front scheme, distributing energy-saving light bulbs to every household. I am delighted to hear that the Government have realised that that was a complete waste of time and that they will not do it again.
	The community energy saving programme includes home energy advice as a measure that can be offered where experts will visit householders and audit current energy, allowing households to take simple, easy steps to reduce energy consumption and cut their fuel bills. I, too, find that difficult to visualise happening in some houses. Given that there are already many energy assessors out of work, I ask whether they will be fulfilling the role of the home energy advisers.
	The Government have estimated that 60 pert cent of the total funding available under the community energy saving programme will go to low-income and elderly householders, who will receive free or substantially discounted energy-saving improvements such as insulation. Will the Minister clarify whether this will be in addition to the support already available to those vulnerable households?
	I have listened, as we all have, to some of the Government's good ideas on CESP and CERT, so the Minister might like to listen to a good idea from this side and see whether he agrees with it. One of our policies is to grant an entitlement to householders to approved home energy-efficiency works up to the value of £6,500. The cost would then be recovered automatically through the household energy bill over a period of up to 25 years, but with a payback period, in terms of reduced fuel consumption, that is substantially shorter. This will be in addition to CERT. Does the Minister think that that is a good idea and would he like to add it to the list of measures that he thinks will tackle these two problems?

Lord Hunt of Kings Heath: My Lords, this has been an extremely interesting debate, particularly as it follows our discussion on the White Paper today. I preferred the noble Baroness's initial assessment of the orders to her later revision. I shall come on to light bulbs in a moment in answer to the noble Lord, Lord Patten, whom it is delightful to see here, recalling our days a few years ago in Oxford City Council chambers.
	The noble Baroness referred at the end of her speech to her party's proposed loan guarantee of £6,500 per household. I am slightly puzzled by it, because, by my reckoning, the implication of its being a loan guarantee is that a Conservative Government would be guaranteeing what could be up to £200 billion of loan. I am confused because I had understood that the Conservative Party was concerned about both personal debt and national debt. I am not quite sure how the two mix together. It is clear, as was pointed out earlier today, that we have many households where energy-saving provisions will be expensive, which is why we announced in the White Paper proposals to try out schemes which recognise that, in order for householders to be willing to pay or to take out loans, there has to be a realistic possibility of there being a payback provision over a reasonable time. That is the key to unlocking the door of many of those homes where the cost of the various energy-saving devices that can be taken is very high. As I said earlier today, it is one of the biggest issues that we need to crack.
	The noble Lord, Lord Teverson, was of course right to raise the more general and fundamental issue of energy saving. In a sense, I have just answered that point. I have no doubt that what we are proposing in CESP and CERT is part of a cohesive approach. Although the noble Lord may be disappointed by the numbers covered, it is none the less an important contribution. However, I also accept, as I have already said, that there are many homes where the costs will be considerably higher than could be covered under these programmes, and it is vital that we tackle that. The transition to a low-carbon Britain will not be able to be successful unless we can really tackle the requirement for energy saving in homes.
	The noble Lord was right to raise fuel poverty among tenants. He will know that it is not always easy to deliver support to the private rented sector given the condition of that sector and the motivation of some private-sector landlords. CESP should be able to make some difference. In particular, the community-partnership approach with local authorities and the incentive for companies to tackle all homes in an area should, we hope, reach the sometimes-difficult-to-reach consumers.
	After Oxford, I moved to Birmingham and was a local authority councillor there for a time. One of the most imaginative schemes that I have seen was called "enveloping", which was concerned not with energy but with the inner-city parts of Birmingham. A whole street, whether it comprised owner occupation or private landlords, would be refurbished outside and in. It was an outstandingly successful approach. It was of course expensive as well, but it saved the inner city. In a sense, this is what we need in relation to energy saving as well. The numbers involved in CESP are significant and they are a start. We shall see how it works and I hope that, if it is successful, we can begin to build on it.
	The noble Lord raised North Sea gas. The example that he raised also involves a street-by-street approach and is consistent with enveloping as I have described. He was right to raise it in that sense.
	When I saw that the noble Lord, Lord Reay, was here tonight, I thought that he would intervene and did not expect him to support the Government's policies in this direction. In that sense, I was not disappointed. He was right to raise the cost of these measures and of what might be described as other climate change measures, how that pans out in bills and what the consumer will have to pay. The figures that he referred to were right, but these costs are one-off, and the benefits will be ongoing for the life of the measures. I say to the noble Lord, Lord Patten, that these costs are built into the figures generally in the White Paper.
	Let us return to costs—a point was raised about the particular problems of the fuel-poor and the impact on them of the measures. We do not have any choice in this matter. It is not a choice between high-cost, low-carbon energy and low-cost, high-carbon energy. We are set on a course to mitigate climate change to 2 degrees centigrade. We have to move to a low-carbon economy and are committed to doing so. That has certain implications in relation to cost. I know that noble Lords disagree with the Government's assessment of the overall cost. Taking account of all existing climate change policies and those that we announced today, we reckoned in the White Paper that the cost would by 2020 be about 8 per cent higher, or £92 per household. I know that some commentators think that it is higher, but the Government are confident of their own figures, which take account of energy-saving estimates as well—in other words, it is a net cost—but that is not unreasonable since we are committed to a large programme of energy-saving measures. At the end of the day, I pray in aid the noble Lord, Lord Stern, in this regard, whose clear advice to the Government was that delaying action would in the end cost much more than taking action now.
	I accept that, in making decisions which will have an impact on the prices paid by consumers, there is a strong obligation on the Government to make sure that this is done in the most cost-effective way and in a fair way, and I accept the noble Lord's comments about the particular challenge of the fuel-poor at the moment because of the rise in prices. We had been very successful in reducing the numbers of fuel poor, but in recent years the cost of energy has unfortunately led to an increase. We are ever mindful of the need to ensure that tariffs are fair and that we have regard to the consequence for the fuel poor. That is why today we announced mandatory powers in relation to the social tariff, building on the already successful voluntary scheme exercised by the companies.

Lord Patten: My Lords, I am extremely grateful to the noble Lord for his very careful explanation. Reverting to the figure of £92 by 2020, the extra burden from these measures laid on the average household: that is 10 years away. The figure of £92 is very precise. Does the noble Lord really have complete confidence in the forecasting ability of any Government, whether Labour, Liberal or Conservative, to say that in 10 or 11 years the sum is going to be exactly £92? I think that it will be in the area of £200 to £250, but that is another argument, and that is a broad-brush approach. Are the Government really wise to suggest that it will be £92, not a penny more, not a penny less?

Lord Hunt of Kings Heath: My Lords, of course I have confidence in the work that is undertaken to give noble Lords and Members in another place as clear an indication as we can as to the likely cost. No doubt this House will finally have been reformed by 2020, but if we are still here then we might be able to debate the question of whether I got that figure right or not. It is the best estimate that we have, and we expect that, for the next four or five years, the increase will be minimal. The cost will rise in the latter part of the next decade. I know that there is a disagreement about these costs, and I suspect that the costs to which the noble Lord refers probably do not take account of the potential impact of energy-saving measures. It could be that that is the reason for that discrepancy. I will be happy to discuss this with him to see if we can at least reach agreement on the methodology, as this is a very important matter.
	I fully understand the point that the noble Lord, Lord Reay, makes about energy bills showing what households are paying towards energy efficiency schemes. He may recall that we debated this very fully last autumn, although I forget whether we were debating the Energy Bill or the Climate Change Bill. We continue to explore with suppliers the best way to strengthen consumers' awareness of these issues. I have no disagreement with him in terms of the principle. The Government have made it quite explicit today that there will be a cost issue for consumers, and although noble Lords disagree about the figure, I hope they will agree that it is very good to have this in the public domain. I agree with the noble Lord that it is very important that this is understood. It is why, incidentally, we are very keen about home energy advice. I noted the concerns and questions that the noble Lord, Lord Patten, and the noble Baroness, Lady Wilcox, raised. We see this is as one of a range of energy efficiency measures that suppliers can promote. Suppliers have discretion about how they market, and costs will fall to suppliers, although we have already accepted that this can be passed on in customers' bills. It is the same point about transparency. The more information we can give the consumer, the better. That is why it is important that we have introduced behavioural measures through the scheme.
	This is also a very good introduction to smart meters. A number of noble Lords are passionate about the impact that smart meters can have. I accept that advice standards need to be of a high quality. My understanding is that only qualified personnel will be allowed to give advice, that Ofgem will require that all advisers have had a CRB check and character references, that suppliers must also provide advice on a specific set of behavioural issues, and these behaviours will obviously come within the kind of framework of regulation which I have suggested. I accept that there must be integrity in this process.
	I refer to the question of rurality. In the consultation we received many conflicting views about how the programme should be targeted. We consulted on the basis that CESP should use the lower income domain of the indices of multiple deprivation to target activity. These areas are in the lowest 10 per cent of income deprivation in England, and the lowest 15 per cent in Scotland and Wales. This will cover more than 2.5 million households in around 4,500 defined areas. The majority of responders agreed that the indices represented transparent objectives and a simple approach. There were some concerns that this would limit the number of rural areas, but no alternative methodology was proposed that was not excessively complicated. However, if CESP is to have its maximum value, it is important that it should foster a reasonable spread of different types of project in different types of location. The Government therefore expect obligated companies seriously to consider targeting action at a variety of areas around the country, including rural areas. We will facilitate contacts where this would be helpful. We will monitor and evaluate all schemes to ensure that any lessons relevant to rural delivery are considered in future policy development.
	I say to the noble Lord, Lord Teverson, that I thought my strike rate in answering his questions was rather better than that, and I am rather concerned.

Lord Teverson: My Lords, I was not questioning the quality, just the quantity on this occasion.

Lord Hunt of Kings Heath: Even that was a bit double-edged, my Lords. The noble Lord expressed concern about whether the energy supply companies were the best people to do this. I understand his concerns but, on the other hand, the companies are there and have current experience. It is our job as a Government to make sure that it is done effectively. The revision that we are making in relation to the CESP order is surely an indication that we do look at how this is working and have made changes where we do not think that it is working effectively.
	I now come to light bulbs. Before the reshuffle four weeks ago, I also had responsibility in Defra, where I was Minister for light bulbs. I understand the reasons why noble Lords are concerned. I, too, heard stories about millions of light bulbs being given out that were not used. I understand the point that the noble Lord made about direct mail. That is why we have made the changes. However, I defend the previous policy. It is a no-brainer that energy efficient light bulbs are a good thing to have. Lots of customers have taken them and now use them, but we have learnt from experience and have come up with what is probably the right way forward.
	I am grateful to noble Lords for their comments on these orders, which I think take us down the right pathway. None the less, important matters have been raised tonight and I will make sure that my department is mindful of them.
	Motion agreed.

Electricity and Gas (Carbon Emissions Reduction) (Amendment) Order 2009

Copy of the Order
	20th Report from the JCSI
	24th Report from the Merits Committee

Motion to Approve

Moved By Lord Hunt of Kings Heath
	That the draft order laid before the House on 1 July be approved.
	Relevant documents: 20th Report from the Joint Committee on Statutory Instruments and 24th Report from the Merits Committee.
	Motion agreed.
	Sitting suspended.

Coroners and Justice Bill

Bill Main Page
	Copy of the Bill
	Explanatory Notes
	Amendments
	7th Report from the Delegated Powers Committee
	8th Report from the Joint Committee on Human Rights 
	16th Report from the Joint Committee on Human Rights

Committee (8th Day) (Continued)

Clause 114 : Monitoring
	Amendment 190
	 Moved by Lord Lloyd of Berwick
	190: Clause 114, page 71, line 38, at end insert—
	"but nothing in this subsection shall entitle the Council to comment on the sentences imposed by individual judges"

Lord Lloyd of Berwick: I can deal with this very shortly, mainly because I have left my notes behind. The amendment may seem unnecessary, but it may be more necessary than at first appears. The reason for this is the experience that the United States has had in relation to sentencing guidelines of this kind.
	The United States has had sentencing guidelines for many years—since 1984, I think—but not long ago, in about 2002, the Prospect Act, I think it was called, was passed, under which it was possible for Congress to monitor the performance of certain courts in the United States to see whether they were consistently sentencing within the guidelines or whether some courts were sentencing consistently below the guidelines. That is very similar to what is proposed in the clause that we are now discussing.
	Certain remarks were made by a great United States judge, Chief Justice Rehnquist, drawing attention to the inherent danger in this approach to sentencing. I shall read two or three passages from the remarks that he made on 5 May 2003, which he repeated in his last end-of-year report to Congress in 2004. He said:
	"The second topic I would like to address is the recent efforts by some in Congress to look into downward departures in sentencing by federal judges, in particular our colleague Judge James Rosenbaum. We can all recognise that Congress has a legitimate interest in obtaining information which will assist in the legislative process".
	We all agree with that. He continued:
	"But the efforts to obtain information may not threaten judicial independence or the established principle that a judge's judicial acts cannot serve as a basis for his removal from office".
	Later he said:
	"The new law"—
	the Prospect Act, although I cannot remember its exact name—
	"also provides for the collection of information about sentencing practices employed by federal judges throughout the country. This, too, is a legitimate sphere of congressional inquiry, in aid of its legislative authority. But one portion of the law provides for the collection of such information on an individualized, judge-by-judge basis. This, it seems to me, is more troubling".
	Finally, he said:
	"There can be no doubt that collecting information about how the sentencing guidelines, including downward departures, are applied in practice could aid Congress in making decisions about whether to legislate on these issues. There can also be no doubt that the subject matter of the questions, and whether they target the judicial decisions of individual federal judges, could amount to an unwarranted and ill-considered effort to intimidate individual judges in the performance of their judicial duties".
	In an age when one can obtain information about almost anything either under the Freedom of Information Act or through other means, it worries me that it might become possible for statistics to be created about how individual judges have performed—whether above or, normally, below the guidelines. If that became possible, it would be a serious interference with the independence of judges. It would intimidate them from performing the function that they are there to perform. That is the danger. The purpose of this amendment is, so far as it is possible, to obviate that. I beg to move.

Baroness Butler-Sloss: I agree with the amendment put forward by the noble and learned Lord, Lord Lloyd of Berwick. I am concerned that one of these days the sentencing council might be under some pressure, particularly from press reporting. It might have to respond to that in a way that is similar to the problem that Chief Justice Rehnquist pointed out in that important passage read by the noble and learned Lord.
	Amendment 191 is mixed with this. We spent some time before the Dinner Break on consistency and its importance. Here is an area of obvious inconsistency: the non-judicial disposal of cases, ones that used to go to the magistrates' court and are now being dealt with by the police and prosecutors and never get to court. It is estimated that anything up to 55 per cent of all cases are not ever getting to court. There is a real danger of lack of consistency between police forces or prosecutors in different parts of the country.
	Amendment 191, in my name and the names of the noble Earl, Lord Listowel, and the noble Viscount, Lord Tenby, proposes that the council should be able to monitor what is going on on the ground in creating out-of-court disposals, fixed penalty notices, penalty notices for disorder and conditional cautions. At the end of the day, somebody who accepts one of these has a criminal mark against them for the rest of their lives, particularly for certain circumstances such as dealing with children. I suspect a conditional caution would be enough to come within the vulnerable persons legislation for being on the register.
	It is important that there should be some review of the way in which the police and prosecutors—the CPS—deal with people who never actually get to court. There should be some recognition that this is going on to such a large degree and there should be some monitoring. The only organisation that could properly monitor it would be the sentencing council. I appreciate that this might give it a fairly large extra duty, but it is highly desirable that the police and prosecutors should know that the way in which they are working in one part of the country may be wholly different from the way in which they are working in another part. As the Government are so rightly concerned with consistency in court, they ought also to be concerned with non-judicial disposal out of court.

The Earl of Listowel: I follow my noble and learned friend in supporting Amendment 191. Indeed, the Minister of Justice has said:
	"For courts to work in the interests of communities, the justice they dispense must be open and visible".
	All sentences imposed are open to public scrutiny and a matter of public record. However, there is an increasing trend for the police and prosecution to use out-of-court disposals, as my noble and learned friend has said. Data collected by the Magistrates' Association show that there is serious inconsistency in the use of such disposals, a lack of proper recording and misuse for inappropriate offences. These disposals are not subject to public, judicial or any other type of scrutiny.
	The Justice Secretary has also said:
	"Open, visible justice, is therefore a means of ensuring judicial accountability through professional and public scrutiny. It gives legitimacy to public institutions; increasing understanding and dispelling myths about the ways in which they operate".
	The police and Crown Prosecution Service are such public institutions, and should be subject to proper record and scrutiny of how they use these disposals. I therefore look forward to the Minister's response.

Baroness Linklater of Butterstone: I shall speak to other amendments in the group, Amendments 191ZE to 191ZG. Amendments 191ZE and 191ZG are essentially probing amendments. We wondered why "demand" was used in relation to prison places and "resources required" in relation to probation provision and youth justice services. The former sounds more imperious and as if it is more likely to be provided. Indeed, that is the expectation, as we have never reached a position in which our prison places have been officially declared as full, however much we may have been above the certified normal accommodation. There is a far greater need for resources for probation and youth justice services, for which the demand is great and the provision far below what is needed. Is there an assumption that, whatever the demand, prison places will be met and the rest can go hang? If that is the case, it is exactly the opposite of what it should be, in terms both of need and of justice. Will the Government be so kind as to explain what is meant in that subsection?
	Amendment 191ZF is another probing amendment. Clause 118(1) says:
	"This section applies where the Lord Chancellor refers to the Council any government policy proposal, or government proposal for legislation, which the Lord Chancellor considers may have a significant effect on one or more of the following".
	This is followed by the list including,
	"demand for prison places ... resources required for probation provision ... resources required for ... youth justice services".
	The clause does not make it a duty for the Lord Chancellor to refer such matters to the sentencing council. It does not even make it a permissive power, by saying, "it may refer". Why was it drafted in this way and what effect will it have on the actions of the Lord Chancellor in referring such matters to the council? This is interesting, in that potentially it implies challenges to government proposals for legislation in relation to effectiveness and a connection between proposals for legislation and how they may work, which would be a most constructive departure.

Lord Henley: I shall speak only on Amendment 190 in the name of the noble and learned Lord, Lord Lloyd of Berwick. I agree fully with the noble and learned Lord and with the noble and learned Baroness, Lady Butler-Sloss. It seems rather worrying that the council might be able to move on and comment on individual judges. I am sure that the Minister will be able to assure us that we have missed something in the Bill that makes it clear that they cannot comment on such things. I look forward to an assurance from him that that is the case.

Lord Bach: This group of amendments and, indeed, the next two groups deal with the functions of the council in relation to monitoring and making assessments of the impact of sentencing, sentencing guidelines and government policy on prison, probation and youth justice. These functions are contained in Clauses 113 to 118.
	The Government believe that these functions are an important development. The Gage working group identified a key role for the council in making these independent assessments to improve clarity and understanding about sentencing and to assist the Government in their planning to meet the demand for prison places, probation and youth justice services.
	We believe that an independent scrutiny of the impact of sentencing guidelines and of government policies and legislation is an important development in the way we deal with penal policy. It is a role designed to increase transparency around the impact of changes in criminal justice policy and legislation.
	On Monday when we considered whether the council needs statutory purposes, the noble and learned Baroness, Lady Butler-Sloss, suggested that we might not need Clauses 113 to 115. With the greatest respect to her, we disagree. We believe that the new duties are so important that the Bill should spell out exactly what is required and avoid any confusion between the respective roles of the council, government and Parliament.
	Amendment 190, of the noble and learned Lord, Lord Lloyd of Berwick, supported by the noble Lord, Lord Henley, and the noble and learned Baroness, Lady Butler-Sloss, deals with the council's duty to monitor the operation of sentencing guidelines. The amendment seeks to ensure that the monitoring duty does not entitle the council to make comments on individual sentencing decisions. I understand the intent but we do not believe that this amendment is necessary, following changes already made to Clause 114 in the other place. The provisions of Clause 114 do not refer to individual sentencing decisions. They refer to the operation of guidelines and to the frequency with which courts depart from guidelines, not to the decisions in individual cases.
	It is clear that the consideration of the legitimacy of a sentencing decision is for the Court of Appeal and not for the sentencing council. I have no doubt that the sentencing council, the majority of which will be made up of judicial members including members of the Court of Appeal, will have no difficulty in recognising the division of functions between monitoring the frequency of departures from guidelines and the legitimacy of that individual sentencing decision. I hope that that will reassure those who support that amendment. Our belief is that it is unnecessary.
	Amendment 191 was spoken to by the noble Earl and the noble and learned Baroness, Lady Butler-Sloss. It seeks toadd to Clause 114 an additional duty on the council to monitor the operation of, and comment on, the use of out-of-court disposals, such as penalty notices for disorder and conditional cautions. I cannot accept the amendment. Let me explain why. First, Clause 114 relates to the monitoring of "sentencing" guidelines. Out-of-court disposals are by their very nature not sentencing decisions. Indeed, penalty notices involve no admission or finding of guilt and fall outside the functions conferred by this Bill on the sentencing council. That is why they are not covered by sentencing guidelines.
	Secondly, and with slightly more comfort to the noble Earl, I suggest that the clause is unnecessary. This is because Clause 117 already places a duty on the council to consider and report on non-sentencing factors, some of which are included in the Bill, which could have a significant effect on the resources needed to give effect to sentences imposed by the courts. Although this would be a matter for the council, I suggest that changes in the use of non-court diversions could be a factor and indeed are likely to be a factor that the council would wish to consider in its report under Clause 117.
	On the amendments spoken to by the noble Baroness, Lady Linklater, I can, I hope, please her to some extent. Without making any promises, it seems to me worth looking again at the wording she objects to in Amendment 191ZE, and the parallel wording 191ZG. Without making any promises at all, if the noble Baroness withdraws her amendments tonight, I am prepared to take them away and look at them again. It may be that we think that we have the best form of words already. However, she has persuaded me that it is worth looking at again.
	She has not persuaded me, alas, on Amendment 191ZF, which would convert the discretion conferred on the Justice Secretary to refer particular policies and legislation to the council into a duty to do so, so that he must refer any policy or legislation that could have a significant impact on resources. The committee will be only too aware of the volume of legislation that Parliament considers. Most legislative changes are unlikely to have a significant impact on correctional services. We have to ensure that the council is not overburdened in carrying out unnecessary assessments.
	The discretion of the Justice Secretary to refer some policy and legislative proposals to the council is meant to allow this new duty for the council to be as practical as possible. That is why the Justice Secretary acts as a single point of reference for the whole of the Government and why he exercises his discretion only to refer policies and legislation that is likely, from the information he has, to have an impact on prison and probation resources.
	Government departments will continue to make impact assessments of policies throughout the policy development process. Those assessments will inform the Justice Secretary in deciding whether a policy is likely to merit reference to the council either because it will clearly have a significant impact or where those assessments have highlighted potential difficulties in making accurate assessments of what the impact will be.
	I hope that it will reassure the noble Baroness if I also point out that there is nothing to stop the council reporting on policies and legislative changes under Clauses 116 and 117 when it makes assessments of the impact of sentencing and non-sentencing factors.

Baroness Linklater of Butterstone: I thank the Minister for his replies. I am glad that he is able to accept one element. In the mean time, I will not be moving my amendments.

Lord Ramsbotham: On behalf of my noble and learned friend, who has been called away on important domestic business, I beg leave to withdraw the amendment.
	Amendment 190 withdrawn.
	Amendment 191 not moved.
	Clause 114 agreed.
	Clause 115 : Promoting awareness
	Amendment 191ZA
	 Moved by Baroness Linklater of Butterstone
	191ZA: Clause 115, page 72, line 10, leave out "may" and insert "must"

Baroness Linklater of Butterstone: Amendment 191ZA refers to a requirement for the council to promote matters relating to sentencing, thereby encouraging greater understanding as well as information; Amendment 191ZB refers to the inclusion of the words, "custodial and non-custodial" sentences. These are all logical extensions of our previous amendments, which I have spoken to at greater length earlier.
	Amendment 191ZD and the provision that we wish to insert, which we originally discussed under the third purpose of the Bill, is outlined here in the briefing. The role of the council must not only be to promote awareness. The council should have a new duty to extend and develop its role to go beyond simply providing and publishing information when it sees fit. It should have a specific educational, as well as informative, role, which would involve active engagement with the public. This has real possibilities for closing the gap between the system and the public for the first time, and enormous potential for and importance in demystifying and communicating the realities of the sentencing process, as well as promoting the Government's desire for transparency. This is much more than just producing the occasional report which is likely to be destined to lie on a shelf. It involves reaching out to the community.
	We have already discussed how the public are systemically misinformed about sentencing practices and believe that the courts are much more lenient than they actually are; that sentencers are too soft; that judges and magistrates are out of touch in their courtrooms; that courts are unlikely to use prison for serious crimes such as burglary, robbery, rape and so on. Inaccurate media representations of sentencing, such as I read out earlier, feed into public misconceptions.
	The amendment offers a real opportunity to correct these misconceptions. For this to come from the council itself would carry with it the authority that it uniquely has about what it does and how it does it. This role is not totally unique, as other councils have held it in other parts of the world, but it would be quite new to us.
	They key thing is the element of real engagement with the outside world, which could take a number of forms but would essentially involve representatives of the council—or council members themselves, which would be best of all—going out and about in the community and holding, for example, "Any Questions?"-style meetings, seminars or town hall events to communicate what they actually do, while getting feedback from the public. It would involve developing and implementing a public information and education strategy, targeting all sectors of the population and the mass media. It would, of course, be a challenging task, but commensurate with the importance and significance of the opportunity.
	I have had the experience of organising a comparable series of meetings around England between sentencers and other agencies, notably the Probation Service and other providers of programmes for offenders. This was during the course of the Rethinking Crime and Punishment initiative that I chaired for seven years. All I can tell your Lordships is that the results were like an epiphany—in this case for both the judges and those that they met and talked to. It opened their eyes—and these were largely professionals—to the realities of what was available as disposal to them in their own patch on the one hand, and gave insights into how the judges thought and worked on the other. It offered a chance to discuss the issues of common concern and did much to promote understanding and confidence all around.
	This proposal offers something not dissimilar for the wider public: to hear from sentencers and have their eyes opened. Another, similar programme now runs all over the country, organised by the Magistrates' Association, in which magistrates and probation officers do regular presentations to local groups about what they do inside and outside court, using real-life examples. It is called Local Crime, Community Sentence and, for the first time, the public get a real insight into what is being done in their name and the name of justice. They are also invited to participate in the decision-making exercises. This was also started as part of my Rethinking Crime and Punishment initiative; I promise Members of the Committee that there was and is a lot of rethinking. It is now so well established that there are regular award schemes among the different areas each year, run by the Magistrates' Association, for the best groups. It is really impressive.
	I have expectations that the council members would be able to do something similar and equally well. It has now become a necessity. I do not need to explain to the Committee that, with public misunderstanding so extensive and confidence in the criminal justice system as low as it is, something urgently needs to be done. The sentencing council will be uniquely well placed to start a process of communication and education for its own, as well as for the community's, sake. I really hope that on this occasion the Government have ears to hear. I entreat them to take the amendment seriously. I beg to move.

Lord Tunnicliffe: This group of amendments relates to the duty on the council to promote an awareness of matters relating to sentencing. Amendment 191ZAchanges the requirement on the council so that it "must" promote awareness rather than that it "may" do so. It is worth noting that there is a distinction between subsections (1) and (2) of Clause 115. The duty on the council in Clause 115(1) means the council "must" publish information on sentencing whereas Clause 115(2) provides that the council "may," promote awareness of matters relating to sentencing. This difference is deliberate. The first is a straightforward duty to publish sentencing data. The promotion of awareness is, however, a much more abstract concept and it is, in our view, less appropriate to tie an independent body to such a statutory duty.
	The Government recognise the importance of promoting an awareness of sentencing issues. We also recognise, however, that the council's central function is to produce guidelines and to make assessments of the impacts of those guidelines. This will be a significant piece of work. The primary role of the council in setting guidelines means that there is—in fact, there has to be—a significant judicial membership of the council. We should not seek to compromise the independence of those judicial members by placing them in a position where they could be considered to be, or even perceived to be, undertaking a political role. I have in mind, for example, difficulties that might arise if the council's role is considered to be to promote one kind of sentence over another or to suggest to the public alternatives to custody. It seems to me sensible, therefore, to give the council some discretion as to how it promotes awareness, respecting the role of the Government in setting out penal policy and the resources assigned to correctional services, and the role of Parliament in setting the sentencing framework.
	Amendment 191ZBamends the illustrative list of information the council may use to promote awareness to read "custodial and non-custodial sentences" rather than just "sentences". I do not think this is a necessary clarification for the council. Given its membership, I am sure it will appreciate that "sentences" includes the entire range of sentences from absolute discharges via fines and community orders to life imprisonment.
	Finally, Amendment 191ZDmakes suggestions about how the council should go about promotingawareness, including programmes of education and making grants to bodies to carry out educational programmes. There are many ways in which the council may promote awareness, including the ways set out in this amendment, but the Government do not believe that it is necessary to spell these out as the council already has discretion to undertake these types of activities. The Government do not want to discourage the council from promoting an awareness of sentencing. We want the council to undertake this role—in fact, we actively encourage it—which is why we have set it out in the Bill. What we are concerned about, however, is that this particular role is tying the council to a duty that it may consider inappropriate and impossible to deliver, which would negate any benefits to be gained from the duty. That is why we think the council needs discretion in this particular regard. I hope that in the light of this explanation, the noble Baroness, Lady Linklater, will agree to withdraw her amendment.

Baroness Linklater of Butterstone: I thank the Minister for his reply which fills me with great disappointment. I feel that he has not understood and appreciated what I have been trying to suggest, and he has quite significantly misunderstood the complications about compromising council members.
	I gave two illustrations of members of the judiciary and the magistracy engaging with the public and explaining their work. That was highly successful and completely non-political as the people concerned simply analysed their jobs. It was a quite different process from what the Minister imagines. I hope that he will read what I have said and follow up the evidence. We have lots of evidence with which to illustrate our case. There is no question of members of the council claiming that one sentence is preferable over another. Their role is educational, not political. It is entirely inadequate and inappropriate to construct or perceive it as anything other than that.
	I understand the objections to the amendments concerning custodial and non-custodial sentences. The Government may have a point there. However, I definitely wish to consider the matter further because in the light of the experience of the past seven years I feel very strongly that what I am suggesting represents a real opportunity if it is looked at dispassionately. In the mean time, I beg leave to withdraw the amendment.
	Amendment 191ZA withdrawn.
	Amendments 191ZB to 191ZD not moved.
	Clause 115 agreed.
	Clause 116 : Resources: effect of sentencing practice
	Amendment 191ZE not moved.
	Clause 116 agreed.
	Clause 117 agreed.
	Clause 118 : Duty to assess impact of policy and legislative proposals
	Amendments 191ZF to 191ZK not moved.
	Clause 118 agreed.
	Clauses 119 to 121 agreed. 
	Clause 122 : Interpretation of this Chapter
	Amendment 191ZL
	 Moved by Lord Bach
	191ZL: Clause 122, page 74, line 31, at end insert—
	""the category range" has the meaning given by section 107(4)(b);"
	Amendment 191ZL agreed.
	Clause 122, as amended, agreed.
	Clause 123 agreed.
	Amendment 191A
	 Moved by Lord Goodhart
	191A: After Clause 123, insert the following new Clause—
	"Imprisonment and detention for public protection
	(1) Sentences of imprisonment or detention for public protection under section 225 or 226 of the Criminal Justice Act 2003 (c. 4) ("indeterminate sentences") shall not be imposed after the date on which this Act is passed.
	(2) Indeterminate sentences imposed before that date shall, after the expiration of three months from that date, be treated (without prejudice to earlier release) as having expired at the end of the maximum term of imprisonment or detention which could have been imposed in the absence of a power to impose indeterminate sentences."

Lord Goodhart: I am delighted that Amendment 191A is supported by the noble Lord, Lord Ramsbotham. I am quite surprised to find myself moving this amendment because my practice when I was a barrister was entirely in the civil field and not at all in the criminal field. However, I became interested in this point when, in September of last year, a report on indeterminate sentences was published by the Chief Inspector of Prisons and the Chief Inspector of Probation. It is one of the most devastating reports that I have ever read.
	I do not know the Chief Inspector of Probation but I have known the Chief Inspector of Prisons, Dame Anne Owers, for many years. I worked with her for a number of years when she was the director of Justice and I was the chair of its executive committee. People generally have the highest regard for her. I have absolute confidence that anything she writes is the truth.
	The Criminal Justice Act 2003 created the indeterminate sentence for public protection, or IPP. It also created a similar sentence of detention for public protection, or DPP, which could be imposed on young people under the age of 18. These two types of sentence are very similar and, for convenience, I will mainly refer to both as IPP. The purpose of an IPP is to enable the courts to override the normal sentencing powers and impose an unlimited or indeterminate sentence on criminals who have been convicted of serious offences—mainly violent or sexual ones—and who appear, or are thought, to pose significant risk of serious harm in the future.
	Ninety-five different offences were included in the list of potentially serious offences, conviction for which could trigger an IPP. The IPP can, however, be applied only if the criminal has at least one previous conviction, but that previous conviction could be for one of 153 different offences—not just the 95 that could trigger the IPP, but 58 lesser offences, including affray or criminal damage. Any such previous conviction creates a presumption that there is a serious risk of future harm. An IPP sentence contains a tariff which sets out the minimum time that must be served by the prisoner. The prisoner's release, however, is dependent not only on their having served their tariff, but on satisfying the Parole Board that they have reduced the risk that they present to the public. If release is granted, it is on licence. An IPP is therefore, in many ways, similar to a life sentence.
	IPPs came into effect in April 2005. By the end of 2006, more than 2,000 prisoners had received IPPs. By the end of 2007, 3,700 prisoners were IPP prisoners. It is estimated that 13 per cent—nearly 500—of these prisoners were by then beyond their minimum tariff. It is estimated that the number of IPP prisoners is increasing by 150 per month. As of February of this year, according to figures published by the Criminal Justice Alliance, there were more than 5,000 IPP prisoners. Some 1,487 were already beyond their minimum tariff, but as of four weeks earlier, only 47 of these prisoners had been released on licence. That amounts to only 3 per cent of those who had already passed beyond their tariff.
	In September 2008 the report of the two chief inspectors was published. It points out the fundamental defects of the IPP system. First, the report pointed out that it is essential, if justice is to be done, for the court—before it sentences a prisoner—to have before it accurate reports assessing the extent of the serious risk of harm. The report concluded that many of the assessments were too high and that the courts had not been given sufficient information to guide their decisions. The part of the report on probation input states:
	"Inspectors examined a sample of 48 cases of adult men, young adults and women sentenced to IPPs, to see whether pre-sentence reports (PSRs) properly addressed risk in order to assist the sentencing court. There had been little guidance to probation staff in carrying out this role. Inspectors found ... Of the 45 cases with pre-sentence reports, fewer than half were informed by a full and accurately completed assessment of current and previous offending behaviour ... Of those cases, 31 (over two-thirds) had at least one diverse need, such as mental health, substance misuse, ethnicity or learning difficulties. In only 14 cases did the report demonstrate an understanding of the relevance of the need to the offending or future risk ... Of the 40 cases which had a risk of harm analysis, only half were judged to have given sufficient consideration to risk issues. Inspectors disagreed with the classification in 17 cases, judging it to be inflated in 16 (40% of cases) ... Overall, the quality of the risk of harm assessment was not sufficient to assist the courts adequately in deciding whether to impose an IPP sentence".
	There is a lot more material which is equally condemning of the machinery by which IPPs are administered.
	Once IPP has been imposed, the Parole Board will expect prisoners to have undergone relevant offender behaviour programmes before they can be released on licence. The arrangement for training is hopelessly inadequate, especially in local prisons, where no relevant training is available and which house hundreds of IPP prisoners. The size of the case load of the Parole Board increased by one-third in the first two years of IPP. That leads to great delays in listing and hearing, not least because, according to the report, only 38 per cent of dossiers arrive on time.
	The report of the inspectors does not propose that IPP and DPP should be abolished. However, it is impossible to read that report without coming to the conclusion that abolition must be seriously considered. IPP has turned out to be both extremely expensive to the state and unjust to many prisoners, keeping prisoners in jail beyond the tariff period because release is delayed by inaccurate pre-sentencing reports, by the absence of proper training and by delays in access to the Parole Board. It is plainly a waste of public money and unjust to the prisoners, but the cost of remedying the defects would be enormous. It would need thorough and effective pre-sentencing reports on risks presented by those who are potentially subject to IPP. It would need proper offender behaviour programmes for all IPP prisoners and ensuring that all such prisoners should be allocated to prisons where the programmes are available.
	The status quo is simply not acceptable, but I do not believe that, at a time of cutbacks in public spending, we would be justified in spending many millions on improvements to a scheme which might well not succeed in reducing crime at all. We should recognise that IPP and DPP are costing the Ministry of Justice money which would be better spent elsewhere and are keeping prisoners in jail who should not be there. IPP and DPP are experiments that have failed and should be brought to an end. For those already serving IPP and DPP sentences, those sentences should be replaced by the maximum sentence for the offence for which they have been convicted. The minimum tariff period would continue to be the same as at present.
	This is a serious condemnation of our prison system and the time has come for us seriously to consider abolition. The Government should abolish the indeterminate sentence now and keep it abolished. I beg to move.

Lord Ramsbotham: I support the amendment, to which I readily put my name, because I could not agree more with every word that the noble Lord, Lord Goodhart, has spoken, not least the tribute that he quite rightly paid to my successor, Dame Anne Owers, who has been a most distinguished Chief Inspector of Prisons.
	As the noble Lord said, the report that she and the Chief Inspector of Probation produced is an absolutely devastating indictment of an appallingly ill-thought-through, ill-considered, expensive and inefficient introduction, which resulted in a grossly overstated, knee-jerk reaction to what was alleged to be a problem. What the noble Lord did not mention was that at about the same time another devastating indictment of IPP was published by the Sainsbury Centre for Mental Health, which reported in great detail on the results of the imposition of IPP sentences on people, not least on their families, who looked up what an IPP meant on the internet and saw that it meant a sentence of not less than 96 years. How stupid can we be? The only stupider sentence that I have come across was in the Cayman Islands, where I found a man who had been sentenced to life plus 56 years.
	The noble Lord, Lord Goodhart, has quite rightly run through the figures. When this IPP was suggested, it was felt that it would apply to a few people—hundreds at the very most. The fact that the policy was not thought through was proved almost immediately by the acceleration of the figures to a level that is now totally and utterly unmanageable. What has always seemed totally extraordinary in a grossly overcrowded and under-resourced prison system is that the Prison Service and the Ministers responsible for it have not asked themselves what the cost of this is in terms of their budget.
	There are thousands of prisoners who have been in prison for far longer than they should, and because of the nature of their alleged offence, they are held in the highest security prisons, at a cost of £65,000 a year each. Surely it stands to reason that if you do not have resources, you should look at the problem and decide what in your structure you can afford to cut and, therefore, produce the money that you need to do what has to be done with prisoners who have to be in prison.
	Prisoners have already successfully taken the Ministry of Justice to court because they have not been provided with the courses to enable them to qualify to go to probation to be released and, therefore, there is a sort of revolving circle inside a revolving door. When is it going to come to an end? If you cannot prove that you can be released, you will be there for ever. If more and more IPP prisoners are added, and there are less and less resources to deal with them, you are totally unnecessarily choking the system.
	The only way out of this IPP problem is to acknowledge that it was a hideous mistake and that before the IPP was introduced checks and balances existed in the system whereby if a prisoner was sentenced to life imprisonment—whatever the tariff was—the risk that they represented determined the time of their release. The people who really need to be kept away from the public can be assessed in the way that the noble Lord, Lord Goodhart, recognised and can be monitored by the prison authorities to make certain that they are released only when that risk is such that release is warranted. There should not be more than 5,000 people in the prison system whose risk is sufficiently serious to warrant the sort of procedures that are currently being applied to some people whose sentences are as short as 38 days. How can you have an indeterminate sentence based on a 38-day sentence? It is ludicrous.
	If the Government really are serious about rehabilitating prisoners, they should make certain that the resources are there to do it and are not wasted on a system which is costing money for no good purpose and with no outcome for the prisoners in the system. I could not agree with the noble Lord, Lord Goodhart, more strongly.

Baroness Stern: I, too, very much support the amendment of the noble Lord, Lord Goodhart. Indeterminacy is a particularly difficult sentence for a person to deal with. You do not know what will happen to you, you do not know when anything will happen to you, and you do not know how you can act to influence what might happen to you. The official answer to indeterminate-sentence prisoners is, "You will be released when you have served your punishment and when you can show us that you have changed and are not likely to do whatever it was you did that got you the sentence in the first place".
	A number of people serving such sentences, or their relatives, write to me, as I am sure they write to other noble Lords. None of them argues about serving a punishment for the crime, whatever the crime was. All the letters are about the second proviso: you cannot get out until you show us you have changed and you are no longer likely to do it again. How are they to do that? Our method is to require prisoners to attend certain psychologically based courses. I make no comment at all on the method that we have chosen but the courses are not available in the numbers required and for them to be available would require considerable resources. The courts have found that unacceptable. It is also unacceptable as a way of administering justice to individuals who are told that their length of time in prison will be decided by certain methods but that those methods are not available to them.
	The effect of such sentences on the prison system has also been highly undesirable. As time is short, I shall quote only two inspectorate reports. The effect on women should be mentioned. The latest inspectorate report on Downview prison says that there were five such prisoners there and each had met her offender supervisor but little else had happened. None of the offender supervisors had received any training about the sentence. At Gartree prison, prisoners given indeterminate sentences were now competing with ordinary lifers for scarce rehabilitative resources, leaving both populations frustrated. The problems with lack of programmes meant that the waiting list for enhanced thinking skills was up to a year, for healthy relationships was between one and two years, for cognitive self-change was for up to two years, and for CALM was between two and three years. The programmes could not be expanded because they had neither the staff nor the accommodation.
	Prisoners, particularly IPP prisoners, frequently described to the inspectors frustration levels so high that they felt that the only way to be heard or to get a move was to resort to violence. Such findings are very common in inspectorate reports. These sentences have been very destabilising on the prisons which are already the most difficult prisons to run and they are very expensive. I wholeheartedly support the amendment.

Lord Thomas of Gresford: We on these Benches, of course, support the amendment of my noble friend Lord Goodhart. The initial concept of crime and punishment was that people should be punished for what they had done, that they should be locked up for a period of time and that they should learn a lesson. Then it occurred to everyone that the sensible thing to do when they were locked up was to try to rehabilitate them so that, when they came out, they were not just given a postal order and let loose on the world without any resources at all, but that they had something behind them. Attempts have been made to rehabilitate.
	We have moved on and this Government have introduced the concept of managing risk. Whereas managing risk is quite acceptable intellectually, if you start managing the risk of people who have not committed anything particularly serious, you need to provide the resources to do it and the Government have failed in that. It is impossible to see where they could ever get the resources to carry out such an ambitious programme. We are left with an intellectual construct that it would be a good idea to manage risk and not to let people out until we are quite sure they have ticked the boxes and gone through the necessary courses.
	I have experience of prisoners as people and I think it would be difficult to see some of them sitting in a cognitive improvement course, or whatever the name of the course is. I cannot see that that would do them a great deal of good. It would be far better to teach them to read, to write, to count and to give them some skills, rather than put them in front of a psychologist and tell them to behave themselves in future.
	I understand how ambitious the scheme was, but the resources have simply not gone into it. It is a failure, and the Government should recognise that, unless they are prepared to make that investment and put in the resources that such an ambitious programme requires. As a result of it, an awful lot of people are now locked up, frustrated because the courses are not provided, frustrated because the boxes cannot be ticked and staying in prison long beyond the period that the judge who sentenced them thought was reasonable. We are building up a cauldron inside those prisons with these IPPs—5,000, at the moment. If the trend continues, it will get worse.
	The Government should go back to basics and get back to the concept of a sentence that lasts for a finite time, so that people know when they are coming out and they can be provided with the necessary courses and skills. That is how prison resources should be spent.

Lord Bach: The amendment is intended to abolish sentences of imprisonment or detention for public protection, commonly known as IPPs and DPPs. As the Committee knows, those sentences were introduced by the Criminal Justice Act 2003 and commenced for offences committed on or after 5 April 2005. Under the 2003 Act, originally, the courts were obliged to pass such sentences on offenders who committed a serious sexual or violent offence—that is one carrying a maximum of 10 years' imprisonment or more—if the court considered them to be dangerous. In this context, an offender might be assumed to be dangerous if they had committed a previous relevant sexual or violent offence.
	The danger that the courts were, and are, required to assess is whether the offender poses a significant risk to members of the public of serious harm by committing further specified sexual or violent offences. The sentences are similar to a life sentence in the way that they operate: the judge sets a minimum period to be served—the tariff—for the purposes of punishment. Once the prisoner has served the tariff, he will be released only if the Parole Board considers him safe to be released into the community.
	I suspect that the amendment has been partly prompted by the difficulties that have been encountered by the high number of public protection sentences imposed with short tariffs. It has been suggested that the Government failed to plan for the introduction of public protection sentences. We do not accept that.

Lord Goodhart: I am, of course, aware of the fact, although I did not deal with it in my speech, that there was an amendment in the 2008 Act, the result of which is, I think, that the minimum tariff has to be two years. That does not alter the substance of what I said.

Lord Bach: The build-up of the IPP population has been broadly in line with projections. Offenders who have received public protection sentences would, prior to the implementation of the 2003 Act, have received lengthy determinate sentences: they are not new prisoners.
	The problems have been caused by the number of sentences with short tariffs. This has caused serious problems for the prison system which, in many instances, has been unable to prepare prisoners for parole in time for their first parole hearing. As the noble Lord, Lord Goodhart, just reminded us, we responded by legislating in the Criminal Justice and Immigration Act 2008 to confer judicial discretion in the imposition of IPPs and DPPs. The 2008 Act also removed the option of passing a public protection sentence for offences for which the appropriate tariff was less than two years in most circumstances. Those changes to the regime focus it on those offenders from whom the public needs most protection.
	We have also put in place much improved systems to ensure that offenders are enabled to demonstrate their reduced dangerousness to the Parole Board and thus show that they are suitable for release. However, the individual prisoner is responsible for his own future. The Judicial Committee of this House has confirmed that the Secretary of State has no common law duty to individual prisoners to provide specific courses for IPP prisoners and that detention post-tariff was lawful.
	The Government placed public protection at the centre of their sentencing reforms. The new sentences introduced in the 2003 Act for dangerous sexual and violent offenders are designed to ensure that they are not released until their risks are considered by the Parole Board to be manageable in the community. Those offenders whose risk decreases with time will be released subject to the recommendation of the Parole Board, but it is surely right that we do not release one-time dangerous offenders until it is safe to do so.
	However, the amendment would revert to the position where there was a lack of sufficient sentencing options for offenders who had committed offences which do not carry life but who nevertheless had a high risk of committing a further offence that would cause serious harm to the public. The amendment goes further by providing for the automatic release of prisoners currently serving public protection sentences once they have served the maximum sentence for the offence committed unless they have been released earlier. No consideration would be taken of the risk they might still pose to the public. Is that really acceptable?
	The Government legislated in the 2008 Act to restore judicial discretion. They also removed it as an option for offences for which the appropriate tariff was under two years. These changes apply to offenders sentenced on or after 14 July last year. In the first six months of 2008, 850 offenders were given an IPP sentence, an average of 141 per month. In the last six months of 2008, following the implementation of the Criminal Justice and Immigration Act, 420 offenders were given an IPP sentence, which is an average of 70 per month. So the number of offenders given such a sentence was reduced by one-half as soon as the 2008 legislation came into force.
	We are seeing the impact of changes to the system for managing the indeterminate-sentence prisoners and of changes in categorisation, but this will take some time to have its full impact. By May 2008, the database showed 14 per cent of the IPP population in category C prisons, an increase on the 3 per cent in January of the same year.
	NOMS has increased provision of accredited programmes, and in excess of £21 million is invested in the delivery of drug treatment programmes in custody. Overall, 64 per cent of IPP prisoners in custody have attended at least one programme in July 2009, compared to a figure of 52 per cent in June 2008 and 65 per cent in March 2009.
	I do not intend at this stage to talk about Clauses 124 and 125. I invite the noble Lord, Lord Goodhart, to withdraw his amendment.

Lord Goodhart: Clauses 124 and 125 are of course simply consequential on Amendment 191A. The noble Lord, Lord Bach, has made out a case which is basically fair enough on the assumption, which I believe is entirely false, that everything is going well. If things were going well, it would be understandable, although still unsatisfactory in many respects. However, the question of significant risk would be justified only if significant risk could be identified with any real prospect of success, which it simply cannot.
	In the past, the risk of offences being committed by a criminal in the future was always dealt by the possibility of imposing anything up to the maximum sentence for that crime. The provision for lengthy determinate sentences has always existed, and has worked reasonably well because past criminal record is an important, central feature in determining the length of the sentence. The Minister's statistics do not satisfy me that we have got anywhere near a satisfactory answer to all of the problems that have arisen.
	In the circumstances, I will withdraw the amendment, but I am very grateful for the support that I have received from the noble Lord, Lord Ramsbotham, the noble Baroness, Lady Stern, and my noble friend Lord Thomas of Gresford. The present situation is a disgrace to the British penal system. Although I withdraw the amendment now, I may seek to bring it back on Report. I beg leave to withdraw Amendment 191A.
	Amendment 191A withdrawn.
	Schedule 14: Extension of disqualification for driving
	Amendment A191AZZA not moved.
	Schedule 14 agreed.
	Clauses 124 and 125 agreed.
	Amendment 191AZA
	 Moved by Lord Bach
	191AZA: After Clause 125, insert the following new Clause—
	"Confiscation orders
	Appeals against certain confiscation orders (England and Wales)
	(1) The Criminal Appeal Act 1968 (c. 19) is amended in accordance with subsections (2) and (3).
	(2) In section 11 (supplementary provisions as to appeal against sentence), after subsection (3) insert—
	"(3A) Where the Court of Appeal exercise their power under paragraph (a) of subsection (3) to quash a confiscation order, the Court may, instead of proceeding under paragraph (b) of that subsection, direct the Crown Court to proceed afresh under the relevant enactment.
	(3B) When proceeding afresh pursuant to subsection (3A), the Crown Court shall comply with any directions the Court of Appeal may make.
	(3C) The Court of Appeal shall exercise the power to give such directions so as to ensure that any confiscation order made in respect of the appellant by the Crown Court does not deal more severely with the appellant than the order quashed under subsection (3)(a).
	(3D) For the purposes of this section—
	"confiscation order" means a confiscation order made under—
	(a) section 1 of the Drug Trafficking Offences Act 1986,
	(b) section 71 of the Criminal Justice Act 1988,
	(c) section 2 of the Drug Trafficking Act 1994, or
	(d) section 6 of the Proceeds of Crime Act 2002;
	"relevant enactment", in relation to a confiscation order quashed under subsection (3)(a), means the enactment under which the order was made."
	(3) After that section insert—
	"11A Quashing of certain confiscation orders: supplementary
	(1) This section applies where the Court of Appeal—
	(a) quash a confiscation order under section 11(3)(a) ("the quashed order"), and
	(b) under section 11(3A), direct the Crown Court to proceed afresh under the relevant enactment.
	(2) Nothing in this section prevents any sum paid by the appellant pursuant to the quashed order being a sum which is recoverable from the Secretary of State as a debt owing to the appellant, but the Court of Appeal may direct that any such sum is not to be repaid until such time as the Crown Court makes a confiscation order, or decides not to make such an order, when proceeding afresh pursuant to section 11(3A).
	(3) Nothing in this section prevents an amount which would otherwise fall to be repaid as a result of the order being quashed being set against an amount which the appellant is required to pay by virtue of a confiscation order made by the Crown Court in those proceedings.
	(4) In this section "confiscation order" and "relevant enactment" have the same meaning as in section 11(3D).""

Lord Bach: My Lords, the new clauses that are inserted by Amendments 191AZA and 191AZB amend Section 11 of the Criminal Appeal Act 1968, and the equivalent legislation in Northern Ireland, so that where the Court of Appeal quashes a confiscation order, it may, as an alternative to making a new order itself, direct the Crown Court to consider whether a new order should be made, and if so what the order should be.
	The reason for these provisions is a problem that has come to light in a recent case called Chambers that potentially affects a large number of other cases. These are cases in which confiscation orders may be liable to be quashed on appeal as having been inadvertently made by reference to regulations that had been superseded.
	The error does not mean that no order can be made. There is a power under Section 11 of the 1968 Act for the Court of Appeal to,
	"make such an order as the sentencing court would have had the power to make",
	and the court could use that power to make a substitute order by reference to the correct regulations, but there is concern that the burden of doing so in a significant number of cases might lead to unacceptable delays in hearing other, perhaps more important, appeals.
	The amendment to Section 11 of the Criminal Appeal Act would therefore give the Court of Appeal the power to remit cases to the Crown Court, where a confiscation order is quashed as a result of a successful appeal by the defence. The Crown Court would then determine whether a new confiscation order should be made, and its terms.
	The amendment ensures that, in doing so, the court would have to take account of any sums that may already have been paid under the terms of the original confiscation order. No fresh order made under Section 11 can treat the defendant more severely than the original one.
	Amendment 221DA has the effect of making the new arrangements apply to appeals that are still pending when the Bill is passed. Amendment 222A is consequential on the main amendments. I commend these amendments to the Committee. I beg to move.

Lord Henley: At this late hour, I think I can say that that sounds satisfactory, but I want to look carefully at what the Minister said and at the amendments. I therefore reserve the right possibly to come back with amendments to them on Report. For the moment, I do not oppose them.
	Amendment A191AZA agreed.
	Amendment 191AZB
	 Moved by Lord Bach
	191AZB: After Clause 125, insert the following new Clause—
	"Appeals against certain confiscation orders (Northern Ireland)
	(1) The Criminal Appeal (Northern Ireland) Act 1980 (c. 47) is amended in accordance with subsections (2) and (3).
	(2) In section 10 (supplementary provisions as to appeals against sentence), after subsection (3) insert—
	"(3A) Where the Court of Appeal exercises its power under subsection (3) to quash a confiscation order, the Court may, instead of passing a sentence in substitution for that order, direct the Crown Court to proceed afresh under the relevant enactment.
	(3B) When proceeding afresh pursuant to subsection (3A), the Crown Court shall comply with any directions the Court of Appeal may make.
	(3C) For the purposes of this section—
	"confiscation order" means a confiscation order made under—
	(a) Article 4 or 5 of the Criminal Justice (Confiscation) (Northern Ireland) Order 1990,
	(b) Article 8 of the Proceeds of Crime (Northern Ireland) Order 1996, or
	(c) section 156 of the Proceeds of Crime Act 2002;
	"relevant enactment", in relation to a confiscation order quashed under subsection (3), means the enactment under which the order was made."
	(3) After that section insert—
	"10A Quashing of certain confiscation orders: supplementary
	(1) This section applies where the Court of Appeal—
	(a) quashes a confiscation order under section 10(3) ("the quashed order"), and
	(b) under section 10(3A), directs the Crown Court to proceed afresh under the relevant enactment.
	(2) Nothing in this section prevents any sum paid by the appellant pursuant to the quashed order being a sum which is recoverable from the Secretary of State as a debt owing to the appellant, but the Court of Appeal may direct that any sum is not to be repaid until such time as the Crown Court makes a confiscation order, or decides not to make such an order, when proceeding afresh pursuant to section 10(3A).
	(3) Nothing in this section prevents an amount which would otherwise fall to be repaid as a result of the order being quashed being set against an amount which the appellant is required to pay by virtue of a confiscation order made by the Crown Court in those proceedings.
	(4) In this section "confiscation order" and "relevant enactment" have the same meaning as in section 10(3C).""
	Amendment 191AZB agreed.
	House resumed.

House adjourned at 9.56 pm.